HORNBOOK  CASE  SERIES 


ILLUSTRATIVE    CASES 


ON 


CRIMINAL    LAW 


BY 

WILLIAM  E.  MIKELL,  B.  S.,  LL.  M. 

PROFESSOR  OF  LAW  IN  THE  UNIVERSITY  OF  PENNSYLVANIA, 
AND  DEAN  OF  THE  FACULTY 


A  COMPANION  BOOK 

TO 

CLARK  ON  CRIMINAL  LAW  (3d  ED.) 


ST.    PAUL 

WEST   PUBLISHING   CO. 

1915 


/ 


Copyright,  1915 

BY 

WEST  PUBLISHING  COMPANY 

(MiKELL  CaS.Cb.L.) 


//■^/ 


r 

0^ 


THE  HORNBOOK   CASE  SERIES 


It  is  the  purpose  of  the  publishers  to  supply  a  set  of  Illustrative 
Casebooks  to  accompany  the  various  volumes  of  the  Hornbook  Series, 
to  be  used  in  connection  with  the  Hornbooks  for  instruction  in  the 
classroom.  The  object  of  these  Casebooks  is  to  illustrate  the  prin- 
ciples of  law  as  set  forth  and  discussed  in  the  volumes  of  the  Horn- 
book Series.  The  text-book  sets  forth  in  a  clear  and  concise  manner 
the  principles  of  the  subject;  the  Casebook  shows  how  these  princi- 
ples have  been  applied  by  the  courts,  and  embodied  in  the  case  law. 
With  instruction  and  study  along  these  lines,  the  student  should  se- 
cure a  fundamental  knowledge  and  grasp  of  the  subject.  The  cases 
on  a  particular  subject  are  sufficiently  numerous  and  varied  to  cover 
the  main  underlying  principles  and  essentials.  Unlike'  casebooks 
prepared  for  the  "Case  Method"  of  instruction,  no  attempt  has  been 
made  to  supply  a  comprehensive  knowledge  of  the  subject  from  the 
cases  alone.  It  should  be  remembered  that  the  basis  of  the  instruc- 
tion is  the  text-book,  and  that  the  purpose  of  these  Casebooks  is  to 
illustrate  the  practical  application  of  the  principles  of  the  law. 

West  Pubushing  Company. 
(iii) 


PREFACE 


This  collection  of  cases  is  compiled  to  accompany  the  third  edition 

of  Clark's  Criminal  Law,  and  is  designed  to  illustrate  the  principles 

of  the  law  there  set  forth.     The  cases  are  in  large  part  reprinted 

from  an  earlier  collection  of  cases  compiled  by  the  present  editor. 

W.  E.  M. 
Castine,  Maine,  July  5,  1915. 

(iv) 


TABLE  OF  CONTENTS 


DEFINITION,  NATURE,  AND  PUNISHMENT  OF  CRIMF.—  Page 

I.     Nature  of  Crime 1 

THE  CRIMINAL  LAW— HOW  PRESCRIBED— 

I.     The  Common  Law 12 

II.     Statutes   14 

THE  MENTAL  ELEMENT  IN  CRIME— 

I.     Motive  Not  Intent 26 

IL     Specific   Intent 28 

III.     Constructive   Intent 30 

IV.     Intent  in  Cases  of  Negligence 34 

"V.     Concurrence  of  Act  and  Intent 36 

PERSONS   CAPABLE  OF  COMMITTING    CRIME,   AND   EXEMPTION 
FROM  RESPONSIBILITY— 

I.     Infancy    37 

II.     Insanity   39 

III.  Drunkenness     46 

IV.  Corporations  49 

V.     Ignorance  or  Mistake  of  Law 53 

VI.     Ignorance  or  JNIistake  of  Fact — Common-Law  Offenses 57 

VII.     Same— Statutory  Offenses 61 

VIII.     Justification — Duress    62 

IX.     Justification — Coercion — Married  Women  65 

X.     Justification — Necessity    66 

PARTIES  CONCERNED  IN  THE  COMMISSION  OF  CRIMES— 

I.     Principals  in  the  First  Degree 70 

II.     Principals  in  the  Second  Degree 71 

III.    Accessories  Before  the  Fact 78 

IV.     Accessories  After  the  Fact 79 

V.     Principal's  Liability  for  Acts  of  Agent 81 

THE  OVERT  ACT— ATTEMPTS,  SOLICITATIONS,  AND  CONSPIRACY— 

I.     Attempts    84 

IL     Solicitation    92 

III.     Conspiracy    95 

OFFENSES  AGAINST  THE  PERSON— 

I.     Homicide  in  General 98 

II.     Justifiable    Homicide 103 

III.  Excusable   Self-Defense 110 

IV.  Murder — Malice   Aforethought 119 

V.     Voluntary    Manslaugjiter 125 

VI.     Involuntary    Manslaughter 130 

OFFENSES  AGAINST  THE  PERSON  (Continued)— 

I.     Rape    133 

II.     Assault  and  Battery. 137 

MiKELL  Cas.Ce.L.  (v) 


Vi  TABLE  OF  CONTENTS 

OFFENSES  AGAINST  THE  HABITATION—  PaK« 

I.     Arson    1^1 

II.     Burglary    152 

OFFENSES  AGAINST  THE  PROPERTY— 

I.     Larceny    1^^ 

1.  Property  that  may  be  Stolen IGO 

2.  Tlie  Trespass  in  Taking 165 

(A)  Larceny  by  Bailee 165 

(B)  Custody  Not  Possession 168 

(C)  Larceny   by  Finder 169 

(D)  Consent  of  Owner  to  Part  with  "Property"  as  Well 

as  Possession 173 

(E)  Delivery  by  Mistake 174 

3.  The    Asportation 177 

4.  Tlie    Intent ISO 

5.  Compound    Larceny 184 

II.     Embezzlement    185 

III.  Cheating  at  Common  Law 187 

IV.  Cheating  by  False  Pretenses 189 

y.     Robbei-y    195 

VI.     Receiving  Stolen  Goods 197 

VII.     Malicious    Mischief 200 

VIII.     Forgery    203 

1.     The  Making  of  the  Instrument 203 

♦  2.     Character  of  the  Instrument 207 

3.     The    Intent 209 

OFFENSES  AGAINST  THE  PUBLIC   HEALTH,   SAFETY,   COMFORT 
AND  MORALS— 

I.     Nuisance  in  Genei'al 211 

II.     Bigamy    217 

III.  Adultery    221 

IV.  Lewdness  and  Illicit  Cohabitation 226 

V.     Incest    229 

VI.     Seduction    230 

VII.     Abortion    233 

OFI^ENSES  AGAINST  PUBLIC  JUSTICE  AND  AUTHORITY— 

L     Obstructing    Justice 235 

I  r .     Prison  Breach   241 

in.     Bribery 242 

OFFENSES  AGAINST  PUBLIC  PEACE— 

I.     Riot    245 

II.     Affray   246 

III.  Forcible  Entry  and  Detainer 249 

IV.  Liljels    251 

JURISDICTION   255 

FORMER    JEOPARDY 264 


TABLE     OF  CASES 


Page 

Bell  V.  State 211 

Boyd  V.  State 144 


Carroll  v.  State . . 
Chapman  v.  State 
Commonwealth  v. 
Commonwealth 
Commonwealth 
Commonwealth 
Commonwealth 
Commonwealth 
Commonwealth 
Commonwealth 
Commonwealth  v. 
Commonwealth  v. 
Commonwealth 
Commonwealth 
Commonwealth  v. 
Commonwealth  v. 
Cutter  V.  State. . . 


V. 
V. 
V. 
V. 
V. 
V. 
V. 


r. 

V. 


105 

140 

Adams 30 

Baldwin 203 

Blanding 251 

Carter 18 

Cooley 19 

Cramer 200 

Hodgldns 231 

Hutchinson.  . .  02 

Nickerson 14S 

Sankey 20G 

Steimling 162 

Stevens 81 

Webb 1 

White 1S2 

55 


Don  Moran  v.  People 133 

Floyd  V.  State 143 

Godfrey  v.  State 37 

Goodall  V.   State 110 

Harding's  Case 249 

Harrison  v.   State 218 

Hartung  v.  People 14 

Haywood  v.  State IGO 

Hill   V.    State 195 

Hughes'  and  Wellings'  Case 195 

Kansas  City  v.  Clark 21 

King,  The,  v.  Tibbits  &  AVindust. .  237 

Lane  v.  State 217 

Le  Mott's  Case 153 

Mercersmith  v.  State 72 

Mills  V.  Commonwealth 233 

Milton  V.   State 36 

Morrison  v.  Commonwealth 108 


Page 

Pennsylvania  v.  Honeyman 119 

People  V.  Button 116 

People  V.     Detroit     White     Lead 

Works   215 

People  V.    Dupree 152 

People  V.   Jaffe 86 

People  V.  Lewis 98 

People  V.   Moutarial i 168 

Phillips'   &    Strong's  Case ISO 

Queen,  The,  v.  Flattery 137 

Quinn  v.  People 156 


Regina  v.  Ardley 

Regina  V.    Aston..... 
Regina  v.  Buttei-fieid . 

Regina  v.   Coney 

Regina  v. 
Regina  v. 
Regina 
Regina 
Regina  v. 
Regina  v. 
Regina 
Regina 
Regina 
Regina 
Regina 
Regina 
Regina 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina  v. 
Regina 
Regina 


Cullum 

Gardner 

Godfrey 

Hehir 

Hodgson. .  . . 

Jeffries 

Jones 

Latimer. .  . . 

Longbottom . 

Manley 

Marriott. . . . 

Pembliton .  . 

Russell 

Serng 

Simpson. .  . . 

Smith 

Stewart 

Thurboru. . . 

Wiley 

Woodward . . 
Respublica  v.  McCarty 

Rex  V.  Gowen 

Rex  V.   Hughes 

Rex  V.  Owen 


V. 
V. 


V. 
V. 
V. 
V. 
V. 
V. 
V. 


V. 
V. 


Rex  V.  Regan 

Rex  V.   Semple 

Rex  V.    Vantandillo. 

Riggs  V.  State 

Roberts  v.  State. . . 


189 
185 

79 
5 
186 
193 
181 
174 
209 
■  7S 
192 

31 

10 

70 
130 

28 
151 
122 
177 
207 
173 
169 
197 
198 

62 
151 

65 
184 

27 
165 
213 

63 
266 


MiKELL  CaS.Cr.L. 


(vu) 


Vlll 


TABLE   OF   CASES 


Page 

Schmidt  v.  United  States. 26 

Simpsou  V.  State 90,  240,  2G0 

Smith  V.  State 148 

Speiden  v.  State 8 

State  V.  Allen 75 

State  V.  Ayles 224 

State  V.  Beck 147 

State  V.  Bigelow 221 

State  V.    Boyett 53 

State  V.   Brazil 245 

State  V.  Brock 230 

State  V.    Buchanan 95 

State  V.    Crawford 154 

State  V.    Cutshall 255 

State  V.  Daniel 137 

State  V.   Davis 142 

State  V.  Doud 241 

State  V.   Ellis 229,  242 

State  V.  Gardner 113 

State  V.    Grugin 127 

State  V.  Haab 4G 

State  V.   Hartley 235 

State  V.    Hill 125 

State  V.  Hurley 84 


Page 

State  V.    Jones 43 

State  V.  Knight 39 

State  V.  Mansel 20 

State    V.    Middleton 187 

State  V.   Moore 155 

State  V.  Morgan 107 

State  V.    Nash 57 

State  V.    O'Brien 34 

State  V.   Rippfth 61 

State  V.   Somniers 264 

State  V.   West 23 

Steel  V.  State 17 

Storey  v.  State 103 

Thornton  v.  State 71 

United  States  v.  Ashton 66 

United  States  v.  John  Kelso  Co. . ,  49 

United  States  v.  Snow 226 

United  States  v.  Worrall 12 

Whitten  v.  State 48 

Williams  v.  State 4 

Wright's    Case 5 


HORNBOOK   CASES 


ON 


CRIMINAL    LAW 


DEFINITION,  NATURE,  AND  PUNISHMENT  OF  CRIME 

I.  Nature  of  Crime  ^ 


COMMONWE.\LTH  v.  WEBB. 

(Supreme  Court  of  Virginia,  1S2S.    6  Rand.  726.) 

Daniel,  J.  The  defendant  was  presented  by  the  grand  jury  for 
the  superior  court  of  Nottoway  county  for  a  public  nuisance,  in  erect- 
ing a  mill-dam  across  Little  creek,  in  the  said  county,  without  lawful 
authority. 

On  this  presentment  an  information  was  filed,  containing  two  counts, 
charging  in  both,  that  by  means  of  the  said  dam,  the  waters  of  the  said 
creek  had  been  rendered  stagnant,  and  the  air  impure ;  concluding  the 
first,  to  the  common  nuisance  of  all  the  citizens  of  the  commonwealth, 
residing  in  the  neighborhood ;  and  concluding  the  second,  to  the  com- 
mon nuisance  of  the  inhabitants  around  the  pond,  naming  them  par- 
ticularly, and  all  other  citizens  of  the  neighborhood.  To  this  informa- 
tion, the  defendant  pleaded  not  guilty,  on  which  issue  was  taken,  and 
two  trials  were  had  before  the  jury,  who  in  both  instances  disagreed. 

At  a  subsequent  term,  the  attorney  for  the  commonwealth,  by  leave 
of  the  court,  amended  his  information,  charging  in  substance  the  same 
fact,  and  concluding  the  first  count,  "to  the  great  damage,  and  common 
nuisance  of  all  the  good  citizens  of  this  commonwealth,  not  only  there 
residing  and  inhabiting,  but  also  going,  returning,  passing  and  re-pass- 
ing by  the  neighborhood  of  the  said  pond."  The  other  count  con- 
cludes, "to  the  common  nuisance  of  all  the  citizens  of  the  common- 
wealth." 

1  For  a  discussion  of  pilnciples,  see  Clark  on  Criminal  Law  (3d  Ed.)  §§  1,  2. 
MiKELL  Cas.Cb.L. — 1 


2  DEFINITION,  NATURE,  AND   PUNISHMENT   OF   CRIME 

To  this  inforaiation,  the  defendant  demurred  generally,  and  the  at- 
torney for  the  commonwealth  joined  in  the  demurrer.  The  said  supe- 
rior court  adjourned  the  case  to  this  court  for  novelty  and  difficulty, 
on  the  question,  "What  judgment  ought  to  be  given  upon  said  demur- 
rer?" .       . 

The  decision  of  this  question  calls  for  a  more  precise  discrnnmation 
between  public  and  private  nuisances  than  was  necessary  for  the  deci- 
sion of  the  case  of  Com.  v.  Faris,  5  Rand.  (Va.)  691. 

In  making  this  discrimination,  the  court  has  been  ably  assisted  by 
the  Attorney  General  and  the  counsel  for  the  defendant,  and  the  con- 
clusion to  which  the  court  has  arrived,  is  this:  That,  to  constitute  a 
public  nuisance,  the  act  done,  or  duty  omitted,  must  affect  injuriously 
some  thing  or  right  in  which  the  community,  as  a  body  politic,  have  a 
common  interest,  and  the  facts  producing  this  injury,  and  connecting 
it  with  such  special  public  right  or  interest,  must  be  both  alleged  and 
proved.  To  carry  this  matter  further  would  obliterate  every  line  that 
now  marks  the  difference  between  public  and  private  wrongs.  The 
community  have  an  interest  in  the  preservation  of  the  health  and  lives 
of  its  members ;  they  have  a  right  to  see  and  provide  that  each  shall 
breathe  the  air  as  pure  as  nature  gives  it.  But  this  interest  and  this 
right  in  no  manner  differ  from  the  interest  in  and  right  to  secure  the 
welfare  of  all  its  members,  in  every  private  relation.  Both  are  pro- 
vided for  by  private  actions  or  public  prosecutions,  according  to  the 
nature  of  the  case. 

As  it  regards  the  case  before  us,  we  find  it  everywhere  laid  down  that 
things  done,  or  duties  omitted,  which  affect  the  public  interest,  are  pub- 
lic nuisances.  Those,  on  the  contrary,  which  affect  particular  individ- 
uals, are  private  nuisances,  and  redressed  by  private  actions.  We  can- 
not find  in  any  decided  case  the  precise  question  before  us  considered, 
but  this  results  from  the  fact  that  no  attempt  has  been  made  to  main- 
tain a  public  prosecution  for  a  nuisance,  arising  from  a  local  fixture, 
the  effects  of  which  are  not  alleged  and  proved  to  be  injurious  to  some 
distinct  public  right  or  interest,  as  contradistinguished  from  that  inter- 
est which  the  public  have  in  each  of  its  members  enjoying  his  own 
right.  No  precedent  can  be  found  of  a  prosecution  of  this  character, 
which  is  not  distinctly  based  on  this  idea.  No  adjudicated  case  con- 
demns the  allegations  which  thus  connect  the  fact  with  the  public  in- 
terest, as  surplusage  or  unnecessary. 

But  it  has  been  strongly  argued  that  notwithstanding  these  aver- 
ments are  constantly  found  in  the  indictments,  in  the  reasoning  of  the 
judges  upon  the  actual  wrong  committed,  the  principal  stress  seems 
to  be  laid  on  the  injury  done  to  the  neighboring  inhabitants,  and  the 
inconvenience  to  the  public  by  the  effect  produced  on  highways,  etc.,  is 
lightly  regarded;  from  hence  this  public  injury  is  called  the  shadow, 
while  the  injury  to  the  neighbors  is  the  real  substance  whereon  the 
public  prosecution  is  founded.    It  is  readily  conceded,  that  on  the  ques- 


NATURE    or    CRIME  « 

tion  of  the  quantum  of  punishment,  this  argument  is  generally  sub- 
stantially correct,  but  we  should  find  no  difficulty  in  confining  this  pun- 
ishment to  the  public  grievance  only,  in  every  case  where  the  parties 
more  immediately  concerned,  are  prosecuting  their  private  remedies,  or 
will  not  forego  them.  The  practice  of  the  courts,  on  indictments  for 
breaches  of  the  peace,  furnishes  the  rule  which  should  govern  in  such 
cases.  The  fact,  that  the  injury  to  surrounding  individuals  is  princi- 
pally regarded  in  estimating  the  grade  of  the  defendant's  delinquency, 
may  be  well  likened  to  the  action  of  a  father  for  debauching  his  daugh- 
ter and  servant,  whereby  he.  lost  her  service  ;  the  latter  is  the  gist  of  the 
action,  without  which  it  cannot  be  rnaintained ;  but,  in  estimating  the 
damages,  the  injury  to  the  feelings  and  character  of  the  father  and  his 
family,  together  with  the  degree  of  impropriety  of  the  defendant's  con- 
duct, are  almost  exclusively  regarded. 

The  necessity  of  thus  restricting  public  prosecutions  for  nuisances 
is  strongly  enforced  by  a  rule  of  law,  which  we  find  nowhere  contra- 
dicted, that  no  private  action  can  be  maintained  for  a  public  nuisance, 
without  special  damage  done  to  the  party  complaining.  By  special 
damage  we  understand  an  injury  different  in  kind  from  that  of  which 
the  public  complains.  If  a  local  fixture  which  renders  the  air  impure 
or  uncomfortable  to  a  neighborhood,  without  affecting  any  public  right, 
as  before  described,  could  be  made  the  subject  of  a  public  prosecution, 
it  must  be  because  all  the  citizens  of  the  commonwealth  are  liable  to  be 
so  affected.  The  injury  thus  sustained  by  any  particular  individual  is 
of  the  same  kind  with  that  to  which  the  public  are  thus  liable,  arising 
from  the  same  cause,  and  affecting  the  same  local  situation.  From  the 
above  rule  it  follows,  that,  if  this  be  a  public  offense,  no  private  action 
in  such  case  could  be  maintained ;  but,  if  we  suppose  that  the  public 
prosecution  is  founded  on  the  injurious  effects  of  such  fixture  on  the 
highway  or  other  public  right,  then  the  private  individual  who,  on  his 
own  land,  off  the  said  highway,  sustains  an  injury  from  the  same  fix- 
ture, on  account  of  its  injurious  eft'ects  on  his  habitation,  complains  not 
at  all  of  an  injury  common  to  himself  and  the  rest  of  the  community, 
but  of  one  to  himself  alone,  and  for  which  he  of  course  may  have  his 
private  remedy. 

For  these  reasons,  we  conclude,  in  the  language  of  some  of  the  judg- 
es who  decided  the  aforesaid  case  of  Com.  v.  Faris,  that  to  support  the 
prosecution,  on  the  information  before  us,  it  ought  to  be  alleged  and 
proved,  that  the  obstructions  placed  in  Little  creek,  in  the  county  of 
Nottoway,  produced  a  stagnation  of  the  waters  thereof,  in  or  near  a 
public  highway,  or  some  other  place  in  which  the  public  have  such  spe- 
cial interest.  The  general  conclusion,  that  the  stagnation  of  the  said 
waters  does  injure  all  the  citizens  of  the  commonwealth  will  not  cure 
the  want  of  such  special  averment,  because  the  facts  stated  do  not  war- 
rant that  conclusion.  The  attempt  made,  in  some  of  the  books  referred 
to,  to  reconcile  the  cases  which  require  this  precise  conclusion  with 


4:  DEFINITION,  NATURE,  AND   PUNISHMENT   OF   CRIME 

those  which  regard  the  indictment  as  good  without,  is  unsatisfactory. 
It  supposes  that  the  general  conclusion  is  called  for  only  in  cases  where 
the  public  nature  of  the  offence  is  not  alleged  in  the  special  averments 
with  sufficient  certainty,  but  nowhere  supposes  that  the  absence  of  such 
averments  may  be  so  supplied. 

The  consequence  is,  that  the  amended  information  filed  in  this  case 
is  not  sufficient,  and  that  the  defendant's  demurrer  to  it  should  be  sus- 
tained, and  judgment  rendered  for  him. 


WILLIAMS  V.  STATE. 

(Supreme  Court  of  Georgia,  1S9S.     105  Ga.  606,  31  S.  E.  546.) 

Lumpkin,  P.  J.^    An  indictment  against  G.  W.  M.  Williams,  found 
by  the  grand  jury  of  Screven  county  and  transferred  for  trial  to  the 
county  court  thereof,  charged  that  the  accused  "did  falsely  and  fraud- 
ulently represent  to  J.  C.  White  that  he,  the  said  Williams,  had  pur- 
chased the  Cuyler  &  Woodburn  Railroad  for  the  sum  of  $27,000,  and 
that  he  had  raised  all  of  the  purchase  price  except  $100,  and  was 
then  on  his  way  to  Savannah  to  pay  the  purchase  money.     By  these 
false  and  fraudulent  representations  the  said  G.  W.  M.  Williams  fraud- 
ulently induced  the  said  J.  C.  White  to  lend  him,  the  said  G._W.  M. 
Williams,  the  sum  of  $100',  which  he  promised  to  pay  back  within  three 
days  from  the  date  of  the  loan.    These  representations,  made  as  afore- 
said, were  all  false  and  fraudulent,  and  were  made  by  the  said  Wil- 
liams for  the  purpose  of  defrauding  the  said  White,  and  did  in  point 
of  fact  defraud  the  said  White,  contrary  to  the  laws  of  the  said  state, 
the  good  order,  peace,  and  dignity  thereof."    At  the  trial  the  state  in- 
troduced testimony  substantiating  all  the  material  allegations  of  the 
indictment.     It  distinctly  appeared  that,  in  the  conversation  between 
the  accused  and  White  which  resulted  in  the  former's  procuring  the 
loan,  he  claimed  to  be  the  owner  of  the  railroad  in  question.    For  in- 
stance, he  used  the  expression,  'T  don't  want  to  incumber  my  road," 
and  other  language  indicating  a  purpose  on  his  part  to  create  the  im- 
pression that  the  railroad  was  his  property.    It  was  further  shown  by 
the  state  that  White  was  actually  defrauded  of  $100,  and  that  Williams 
did  not  repay  the  loan  as  he  had  agreed  to  do.     Evidence  in  behalf  of 
the  accused  tended  to  show  the  following:    After  Williams  had  been 
arrested  upon  a  warrant  charging  him  with  being  a  cheat  and  swindler, 
and  before  he  was  indicted,  he  made  a  settlement  with  White  by  deliv- 
ering to  him  the  promissory  note  of  E.  E.  Wood  &  Co.  for  $100,  which 
White  accepted  in  full  satisfaction  of  his  demand  against  Williams,  and 

a  Part  of  the  opinion  Is  omittecL 


NATURE   OF   CRIME  O 

afterwards  sold  for  $90.  There  was  a  verdict  of  guilty  in  the  county- 
court,  and  by  his  petition  for  certiorari  Williams  alleged  error  as  fol- 
lows :     *     *     * 

Second.  The  judge  erroneously  charged  that  "a  settlement  of  the 
debt  by  White  after  the  warrant  had  been  sworn  out,  and  the  defend- 
ant was  under  arrest  or  under  bond,  would  be  no  bar  to  the  prosecu- 
tion."    *     *     * 

We  are  also  of  the  opinion  that  the  second  charge  excepted  to  was 
free  from  error.  That  a  fraud  was  perpetrated  upon  White  plainly 
appeared.  As  a  result  of  this  fraud  he  was  deprived  of  the  possession 
and  use  of  his  money,  and  it  is  apparent  from  the  evidence  as  a  whole 
that  there  was  a  criminal  intent  on  the  part  of  Williams  not  to  return 
the  money  at  all.  That  he  was  subsequently  forced  to  make  restitution, 
which,  as  will  have  been  seen,  was  only  partial,  did  not  relieve  him  of 
the  consequences  of  his  violation  of  the  criminal  statute,  which  was 
complete  before  his  arrest.  As  well  might  it  be  said  that  one  guilty  of 
a  larceny  could  escape  prosecution  by  returning  the  stolen  goods  after 
being  arrested  for  the  offense.     *     *     * 

Judgment  affirmed.    All  the  Justices  concurring. 


WRIGHT'S  CASE. 

(Assizes,  1604.    Co.-Litt.  127a.) 

In  my  circuit  in  anno  1  Jacobi  regis,  in  the  county  of  Leicester,  one 
Wright,  a  young  strong  and  lustie  rogue,  to  make  himselfe  impotent, 
thereby  to  have  the  more  colour  to  begge  or  to  be  relieved  without  put- 
ting himselfe  to  any  labour,  caused  his  companion  to  strike  off  his  left 
hand ;  and  both  of  them  were  indited,  fined  and  ransomed  therefore, 
and  that  by  the  opinion  of  the  rest  of  the  justices  for  the  cause  afore- 
said. 


REGINA  v.  CONEY. 

(Queen's  Bench  Division,  1882.    8  Q.  B.  Div.  534.) 

Hawkins,  J.s  *  *  *  At  the  Berkshire  October  Quarter  Ses- 
sions, 1881,  the  defendants  were  convicted  under  the  direction  of  Mr. 
Benyon,  the  chairman,  upon  two  counts  of  an  indictment.  One  charged 
them  with  an  assault  upon  Charles  Mitchell,  the  other  with  an  assault 
upon  John  Burke ;  Mitchell  and  Burke  being  the  combatants  in  a  fight 

3 1'art  of  the  opinion  is  omitted,  as  are  also  the  concuri-ing  opinions  of 
Cave,  Matthew^,  Stephen,  Manisty,  Pollocli,  and  Denman,  JJ.,  and  Coleridge, 
C.  J. 


6  DEFINITION.  NATURE,  AND   PUNISHMENT   OF   CRIME 

which  took  place  at  Ascot,  on  the  16th  of  June,  1881.  The  facts  are 
fully  set  forth  in  the  case  reserved  for  the  opinion  of  the  Court  of 
Criminal  Appeal. 

Two  questions  were  argued  before  us:  First,  whether  the  combat- 
ants were  guilty  of  assaults  upon  each  other;  and,  secondly,  whether 
the  defendants  were  aiders  and  abettors  in  the  fight,  and  therefore  also 
rightly  convicted.  Upon  the  first  question  the  defendants'  counsel 
contended  that,  each  of  the  combatants  having  assented  to  the  fight, 
neither  could  be  convicted  of  an  assault  upon  the  other.  To  this  con- 
tention I  cannot  give  my  sanction.  As  a  general  proposition  it  is  un- 
doubtedly true  that  there  can  be  no  assault  unless  the,  act  charged  as 
such  be  done  without  the  consent  of  the  person  alleged  to  be  assaulted, 
for  want  of  consent  is  an  essential  element  in  every  assault,  and  that 
which  is  done  by  consent  is  no  assault  at  all.  Christopherson  v.  Bare, 
II  O.  B.  473;  Reg.  v.  Guthrie,  L.  R.  1  C.  C.  R.  241,  243,  and  numer- 
ous other  cases.  It  may  be  that  consent  can  in  all  cases  be  given  so 
as  to  operate  as  a  bar  to  a  civil  action,  upon  the  ground  that  no  man 
can  claim  damages  for  an  act  to  which  he  himself  was  an  assenting 
party.  Christopherson  v.  Bare.  That  case,  however,  was  decided  upon 
a  point  of  pleading,  and  must  not  be  considered  as  a  direct  authority 
on  this  subject.  It  is  not  necessary,  however,  upon  the  present  occa- 
sion, to  express  any  decided  opinion  upon  the  point ;  for,  whatever 
may  be  the  effect  of  a  consent  in  a  suit  between  party  and  party,  it  is 
not  in  the  power  of  any  man  to  give  an  effectual  consent  to  that  which 
amounts  to,  or  has  a  direct  tendency  to  create,  a  breach  of  the  peace, 
so  as  to  bar  a  criminal  prosecution.  In  other  words,  though  a  man 
may  by  his  consent  debar  himself  from  his  right  to  maintain  a  civil  ac- 
tion, he  cannot  thereby  defeat  proceedings  instituted  by  the  Crown  in 
the  interests  of  the  public  for  the  maintenance  of  good  order.  Per 
Burrough,  J.,  in  Rex  v.  BeHngham,  2  C.  &  P.  234.  He  may  compro- 
mise his  own  civil  rights,  but  he  cannot  compromise  the  public  interests. 

Nothing  can  be  clearer  to  my  mind  than  that  every  fight,  in  which 
the  object  and  intent  of  each  of  the  combatants  is  to  subdue  the  other 
by  violent  blows,  is,  or  has  a  direct  tendency  to,  a  breach  of  the  peace, 
and  it  matters  not,  in  my  opinion,  whether  such  fight  be  a  hostile  fight 
begun  and  continued  in  anger,  or  a  prize  fight  for  money  or  other  ad- 
vantage. In  each  case  the  object  is  the  same,  and  in  each  case  some 
amount  of  personal  injury  to  one  or  both  of  the  combatants  is  a  prob- 
able consequence,  and,  although  a  prize  fight  may  not  commence  in  an- 
ger, it  is  unquestionably  calculated  to  rouse  the  angry  feelings  of  both 
before  its  conclusion.  I  have  no  doubt,  then,  that  every  such  fight  is 
illegal,  and  the  parties  to  it  may  be  prosecuted  for  assaults  upon  each 
other.  Many  authorities  support  this  view.  In  Rex  v.  Ward,  1  East, 
P.  C.  270,  the  prisoner  was  tried  for  the  slaughter  of  a  man  whom  he 
had  killed  in  a  fight  to  which  he  had  been  challenged  by  the  deceased 
for  a  public  trial  of  skill  in  boxing.    No  unfairness  was  suggested,  and 


NATURE    OF   CEIME  < 

yet  it  was  held  that  the  prisoner  was  properly  convicted.  To  the  same 
effect  is  the  case  of  Reg.  v.  Lewis,  1  C.  &  K.  419,  in  which  Coleridge, 
J.,  said :  "When  two  persons  go  out  to  strike  each  other,  each  is  guilty 
of  an  assault."  See,  also,  Reg.  v.  Hunt,  1  Cox,  C.  C.  177,  per  Alder- 
son,  B. ;  Reg.  v.  Brown,  1  C.  &  M.  314,  by  the  same  learned  Baron; 
and  by  Bramwell,  B.,  in  Reg.  v.  Young,  10  Cox,  C.  C.  371. 

The  cases  in  which  it  has  been  held  that  persons  may  lawfully  en- 
gage in  friendly  encounters  not  calculated  to  produce  real  injury,  or 
to  cause  angry  passions  in  either,  do  not  in  the  least  militate  against 
the  view  I  have  expressed ;  for  such  encounters  are  neither  breaches 
of  the  peace,  nor  are  they  calculated  to  be  productive  thereof.  But  if, 
under  color  of  a  friendly  encounter,  the  parties  enter  upon  it  with,  or 
in  the  course  of  it  form,  the  intention  to  conquer  each  other,  by  vio- 
lence calculated  to  produce  mischief,  regardless  whether  hurt  may  be 
occasioned  or  not,  as,  for  instance,  if  two  men,  pretending  to  engage 
in  an  amicable  spar  with  gloves,  really  have  for  their  object  the  inten- 
tion to  beat  each  other  until  one  of  them  be  exhausted  and  subdued  by 
force,  and  so  engage  in  a  conflict  likely  to  end  in  a  breach  of  the  peace, 
each  is  liable  to  be  prosecuted  for  an  assault.  Reg.  v.  Orton,  39  L.  T. 
293.  Whether  an  encounter  be  of  the  character  I  have  just  referred 
to,  or  a  mere  friendly  game,  having  no  tendency,  if  fairly  played,  to 
produce  any  breach  of  the  peace,  is  always  a  question  for  the  jury  in 
case  of  an  indictment,  or  the  magistrates  in  case  of  summary  proceed- 
ings. 

The  cases  cited  of  alleged  indecent  assaults  on  young  children  by 
their  consent  are  no  authorities  to  the  contrary,  and  may  all  be  dis- 
posed of  in  this  one  observation,  viz.,  that  the  indecent  impositions  of 
hands  charged  in  those  cases  as  assaults  neither  involved,  nor  were 
calculated  to  involve,  breaches  of  the  peace,  and  therefore,  being  by 
consent,  were  not  punishable  as  assaults,  any  more  than  they  would 
have  been  had  the  objects  of  them  been  for  the  most  innocent  purposes. 
I  think  it  wholly  immaterial  in  considering  cases  of  this  description  to 
inquire  by  whom  the  first  blow  was  struck,  for,  as  was  said  by  Lindley, 
J.,  in  Reg.  v.  Knock,  14  Cox,  C.  C.  1,  "the  right  of  self-defense  does 
not  justify  counter  blows  struck  with  a  desire  to  fight." 

Upon  the  ruling  of  the  chairman  aa  to  the  illegality  of  the  fight,  I 
entertain,  therefore,  no  manner  of  doubt,  and  I  am  clearly  of  opinion 
that  the  combatants  themselves  were  each  guilty  of  an  assault  upon 
each  other.  , 


8  DEFINITION,  NATURE,  AND  PUNISHMENT   OF   CRIME 

SPEIDEN  V.  STATE. 

(Court  of  Appeals  of  Texas,  1877.    3  Tex.  App.  156,  30  Am.  Rep.  126.) 

Burglary, 

White,  J.*  *  *  *  As  disclosed  in  the  record,  the  facts  are 
substantially  as  follows: 

Pinkerton's  Detective  Agency,  at  Chicago,  111.,  obtained,  by  some 
means,  a  number  of  letters  and  postal  cards  written  by  the  defendant 
from  Dallas,  to  a  friend  in  Chicago,  urging  him  to  come  to  D'allas  and 
join  him  in  breaking  into  and  robbing  some  of  the  banks  in  the  latter 
city.  It  appears  that  Pinkerton  forwarded  those  letters  to  John  Kerr,  a 
banker  of  Dallas,  who  immediately  called  a  meeting  of  the  bankers  of 
the  city  and  submitted  the  matter  to  them.  The  result  of  this  meeting 
was  that  the  bankers  requested  Pinkerton  to  send  a  detective  to  Dallas 
to  work  up  the  case.  Deroso,  a  sergeant  of  Pinkerton's  force,  came, 
and,  after  an  interview  with  the  bankers,  sent  back  to  Chicago  for 
Wood  and  McGuire,  two  detective  aids  who  were  to  represent  them- 
selves to  the  defendant  as  professional  burglars  and  induce  him  to  en- 
ter some  bank  building  in  the  nighttime,  when  they  would  procure  his 
arrest. 

After  the  arrival  of  Wood  and  McGuire  they  set  to  work  to  carry 
out  this  plan,  keeping  in  constant  communication  with  Deroso,  and, 
through  him,  with  the  bankers,  who  were  kept  consfantly  informed  as 
to  the  plans  and  movements  of  the  parties.  Finally  it  was  agreed  on 
all  hands  that  the  banking  house  of  Adams  &  Leonard  should  be  bro- 
ken into  on  Sunday  night.  Adams  &  Leonard  agreed  to  the  arrange- 
ment, and  the  detectives  were,  in  the  adventure,  working  in  their  em- 
ploy. 

Pursuant  to  the  plan  agreed  upon,  Deroso,  Hereford,  a  deputy  sher- 
iff of  Dallas  county,  a  Mr.  Mixon,  United  States  deputy  marshal,  and 
another  party  entered  and  took  possession  of  the  bank  during  the  day- 
time, about  2  or  3  o'clock  on  Sunday,  to  remain  therein  until  the  bur- 
glary was  effected  and  the  defendant  was  arrested.  About  1  o'clock  at 
night  the  back  door  of  the  bank  was  forced  open  by  the  two  detectives, 
Wood  and  McGuire,  who  came  in,  spoke  to  the  concealed  parties,  and 
went  into  the  vault,  when,  after  remaining  about  an  hour,  Wood  went 
out,  told  Speiden,  the  defendant,  that  they  wanted  more  help,  and  re- 
turned in  a  short  time,  and,  coming  in,  closed  the  door  after  him.  In 
a  minute  or  two  Speiden  came  in  and  closed  the  door,  when  the  officers 
arrested  him. 

Now,  as  to  the  law  of  the  case:  To  our  minds  it  is  clear  that  D-eroso 
and  the  other  detectives  were  the  servants  and  agents  of  Adams  & 
Leonard,  and  had  full  authority  to  consent  to  defendant's  entry  into 

♦  I'art  of  the  opinion  Is  omitted. 


NATURE   OF  CRIME  » 

the  bank,  and  that  his  entry  was  not  only  with  their  consent,  but  at  their 
solicitation.  The  case  is  somewhat  like  that  of  a  man  being  robbed  by 
his  own  consent,  although  the  supposed  robbers  did  not  know  of  the 
consent.    Reanes'  Case,  2  East,  734;   McDaniel's  Case,  Fost.  121. 

In  Tennessee,  where  the  prisoner  had  arranged  with  a  negro,  dur- 
ing the  days  of  slavery,  to  steal  him,  and  the  negro  informed  his  mas- 
ter, who  told  him  to  carry  out  the  agreement  between  the  prisoner  and 
himself,  which  was  done,  and  the  prisoner  was  arrested  in  the  act,  it 
was  held  that,  to  constitute  larceny  of  a  slave,  it  must  appear  that  the 
accused  had  possession  of  the  slave,  and  that  the  possession  was  ob- 
tained without  the  consent  of  the  owner.  Kemp  v.  State,  11  Humph. 
(Tenn.)  320. 

Mr.  Bishop  says :  "The  cases  of  greatest  difficulty  are  those  in  which 
one,  suspecting  crime  in  another,  lays  a  plan  to  entrap  him.  Conse- 
quently, even  if  there  is  a  consent,  it  is  not  within  the  knowledge  of 
him  who  does  the  act.  Here  we  see  *  *  *  that,  supposing  the 
consent  really  to  exist,  and  the  case  to  be  one  in  which,  on  general 
doctrines,  the  consent  will  take  away  the  criminal  quality  of  the  act, 
there  is  no  legal  crime  committed,  though  the  doer  of  the  act  did  not 
know  of  the  existence  of  the  circumstances  which  prevented  the  crim- 
inal quality  from  attaching.  *  *  =(=  /^  common  case  is  that  of  bur- 
glars who,  intending  to  break  into  a  house  and  steal,  tempt  the  servant 
of  the  occupant  to  assist  them,  and  the  servant,  after  communicating 
the  facts  to  his  master,  is  authorized  to  join  them  in  appearance.  Un- 
der such  circumstances,  clearly,  the  burglars  are  not  excused  for  what 
they  do  personally ;  but  it  seems,  if  the  servant  opens  the  door  while 
they  enter,  they  are  not  held  criminal  for  this  breaking  thus  done  by 
the  servant,  acting  under  command  of  the  occupant  of  the  house  bro- 
ken."   1  Bishop's  Cr.  Law,  §  262.    See,  also,  section  263. 

The  case  of  Regina  v.  Johnson  and  Jones,  1  Car.  &  M.  (41  Eng.  C. 
L.  R.)  123,  is  in  point.  In  that  case  the  court  say:  "Cole,  the  groom, 
it  is  true,  appeared  to  concur  with  the  prisoners  in  the  commission  of 
the  offense.  But  in  fact  he  did  not  really  concur  with  them,  and  he, 
acting  under  the  direction  of  the  police,  must  be  taken  to  have  been 
acting  under  the  direction  of  Mr.  Drake  the  prosecutor.  Under  the 
circumstances  of  this  case  the  prisoners  went  into  a  door  which,  it 
seems  to  me,  was  lawfully  open.  Therefore  neither  of  them  was  guilty 
of  burglary." 

In  Eggington's  Case,  which  is  also  in  point,  it  was  held  "that  no 
felony  was  proved,  as  the  whole  was  done  with  the  knowledge  and  as- 
sent of  Mr.  Boulton,  and  the  acts  of  Phillips  (the  servant)  were  his 
acts."    2  East,  666. 

Another  case  in  point  is  Allen  v.  State,  the  substance  of  which  is 
that,  "when  the  proof  showed  that  the  prisoner  proposed  to  a  servant 
a  plan  for  robbing  his  employer's  office  at  night ;  that  the  servant  dis- 
closed the  plan  to  his  employer,  by  whom  it  was  communicated  to  the 


10  DEFINITION,  NATURE,  AND   PUNISHMENT    OF   CEIME 

police ;  that  the  master,  acting  under  the  instructions  of  the  police, 
furnished  the  servant  with  the  keys  of  his  office  on  the  appointed  night ; 
that  the  ser^^ant  and  the  prisoner  went  together  to  the  office,  when  the 
servant  opened  the  door  with  the  key,  and  both  entered  through  the 
door,  and  were  arrested  in  the  house  by  the  police — held  that  there 
could  be  no  conviction  of  burglary."  40  Ala.  334,  91  Am.  Dec.  477. 
See,  also,  2  Whart.  Cr.  Law,  §  1540;   Roscoe's  Cr.  Ev.  345. 

In  the  case  at  bar  the  detectives  cannot  be  considered  in  any  other 
light  than  as  the  servants  and  agents  of  the  bankers,  Adams  &  Leonard. 
They  (the  detectives)  had  the  legal  occupancy  and  control  of  the  bank. 
Two  of  them  made  arrangements  with  defendant  to  enter  it ;  and  de- 
fendant, when  arrested,  had  entered  the  bank  at  the  solicitation  of  those 
detectives,  who  were  rightfully  in  possession,  with  the  consent  of  the 
owners.  This  cannot  be  burglary  in  contemplation  of  law,  however 
much  the  defendant  was  guilty  in  purpose  and  intent. 

The  judgment  of  the  lower  court  must  be  reversed,  and  the  cause  re- 
manded. 

Reversed  and  remanded. 


REGINA  V.  LONGEOTTOM  et  al. 

(Norfolk  Circuit,  1849.     3  Cox,  C.  C.  439.) 

The  indictment  charged  that  the  two  prisoners  feloniously  killed 
and  slew  John  Truman,  by  driving  over  him  with  a  gig. 

O'Malley  and  E.  Rodwell,  for  the  prosecution,  proved  that  the  two 
prisoners,  who  lived  in  Ipswich,  had  gone  to  Bentley  on  the  day  named 
in  the  indictment  in  a  gig,  and  that  on  their  return  at  night  they  were 
observed  to  be  in  a  state  of  partial  intoxication.  At  several  places  they 
drove  along  the  high  road  at  a  very  rapid  pace,  and  when  they  got 
within  two  miles  of  Ipswich  they  met  three  men.  At  that  time  they 
were  laughing  and  driving  rapidly  down  a  hill,  the  top  of  which  was 
thickly  shaded  with  trees.  When  the  three  men  got  to  the  trees  they 
found  a  man  lying  insensible  in  the  middle  of  the  road,  presenting  all 
the  appearance  of  having  been  just  run  over  by  some  vehicle.  They 
took  up  the  man,  who  shortly  afterwards  died.  On  inquiry  it  turned 
out  that  the  deceased  was  a  man  who  had  been  deaf  from  childhood, 
but  had,  in  spite  of  his  infirmity,  contracted  an  inveterate  habit  of  walk- 
ing at  all  hours  in  the  middle  of  the  road.  Against  the  probable  conse- 
quences of  an  indulgence  in  this  habit  he  had  been  frequently  warned, 
but  without  effect. 

I).  Y).  Keane,  for  the  prisoner,  Longbottom,  submitted,  at  the  close 
of  tlic  case  for  the  prosecution,  that  he  ought  to  be  acquitted,  inas- 
much as  it  appeared  that  the  deceased  had  contributed  in  a  great 
measure,  if  not  altogether,  to  his  own  death  by  his  own  obstinacy  and 
negligence.  There  was,  moreover,  no  proof  that  the  prisoners  were 
driving  at  any  extraordinary  pace;    while  it  appeared  that  they  were 


NATURE   OF   CRIME  11- 

in  the  middle  of  the  road,  and  that  the  deceased  was  walking  just  where 
he  ought  not  to  have  been,  reference  being  had  to  the  lateness  of  the 
hour,  the  darkness  of  the  place,  and  his  peculiar  infirmity,  which  ought 
to  have  induced  him  to  refrain  from  the  selection  of  the  most  fre- 
quented part  of  the  high  road  as  that  on  which  alone  he  would  walk. 
No  accident  could  possibly  have  occurred  to  the  deceased,  if  he  had 
been  at  the  side  of  the  road  where  foot  passengers  always  walked. 
He  had,  therefore,  contributed  to  his  own  death,  and  the  question  was 
whether  that  fact  did  not  exonerate  the  prisoners  from  such  a  charge 
as  the  present.  This  might  be  tested  by  analogy  with  a  civil  action 
under  Lord  Campbell's  act.  Under  that  statute  the  representatives  of 
the  deceased  could  not  maintain  an  action  for  compensation  against  the 
prisoners,  as  he  had  himself  been  guilty  of  negligence ;  so,  in  this  pros- 
ecution, it  was  contended  that  the  prisoners  could  not  be  convicted  of 
the  crime  of  manslaughter. 

RoLFE,  B.  I  cannot  stop  the  case;  for,  whatever  may  have  been 
the  negligence  of  the  deceased,  I  am  clearly  of  opinion  that  the  pris- 
oners would  not  be  thereby  exonerated  from  the  consequences  of  their 
own  illegal  acts,  which  would  be  traced  to  their  negligent  conduct,  if 
any  such  existed.  I  am  of  opinion  that,  if  any  one  should  drive  so  rap- 
idly along  a  great  thoroughfare  leading  to  a  large  town  as  to  be  unable 
to  avoid  running  over  any  pedestrian  who  may  happen  to  be  in  the 
middle  of  the  road,  it  is  that  degree  of  negligence  in  the  conduct  of 
a  horse  and  gig  which  amounts  to  an  illegal  act  in  the  eye  of  the  law ; 
and,  if  death  ensues  from  the  injuries  then  inflicted,  the  parties  driv- 
ing are  guilty  of  manslaughter,  even  though  considerable  blame  may 
be  attributed  to  the  deceased.  I  do  not  at  all  recognize  the  analogy 
which  has  been  put  with  regard  to  an  action  under  Lord  Campbell's 
act  and  a  charge  of  felony;  and  I  abstain  from  giving  any  opinion 
as  to  the  question  whether,  under  the  circumstances  here  proved,  the 
representatives  of  the  deceased  would  be  precluded  from  maintaining 
an  action  for  compensation  against  the  prisoners.  But  there  is  a  very 
wide  distinction  between  a  civil  action  for  pecuniary  compensation 
for  death  arising  from  alleged  negligence  and  a  proceeding  by  way  of 
indictment  for  manslaughter.  The  latter  is  a  charge  imputing  criminal 
negligence,  amounting  to  illegality,  and  there  is  no  balance  of  blame  in 
charges  of  felony ;  but,  wherever  it  appears  that  death  has  been  occa- 
sioned by  the  illegal  act  of  another,  that  other  is  guilty  of  manslaughter 
in  point  of  law,  though  it  may  be  that  he  ought  not  to  be  severely  pun- 
ished. If  the  jury  should  be  of  opinion  that  the  prisoners  were  driving 
along  the  road  at  too  rapid  a  pace,  considering  the  time  and  place,  and 
were  conducting  themselves  in  a  careless  and  negligent  way  in  the  man- 
agement of  the  horse  intrusted  to  their  care,  I  am  of  opinion  that  such 
conduct  amounts  to  illegality,  and  that  the  prisoners  must  be  found 
guilty  on  this  indictment,  whatever  may  have  been  the  negligence  of  the 
deceased  himself. 

Verdict,  guilty. 


12  THE   CRIMINAL  LAW — HOW  PRESCRIBED 


THE  CRIMINAL  LAW— HOW  PRESCRIBED 

I.  The  Common  Law  ^ 


UNITED  STATES  v.  WORRALU 

(Circuit  Court  of  United  States,  Pennsylvania  District,  179S.    2  Dall.  384,  Fed. 

Cas.  No.  16,766,  1  L.  Ed.  426.) 

The  defendant  was  charged  with  an  attempt  to  bribe  Tench  Coxe, 
the  Commissioner  of  the  Revenue,  the  indictment  containing  two 
counts.    Verdict — Guilty  on  both  counts  of  the  indictment. 

Dallas,  who  had  declined  speaking  on  the  facts  before  the  jury,  now 
moved  in  arrest  of  judgment 

Rawle,  District  Attorney,  contra. 

Chase;,  Justice.^  Do  you  mean,  Mr.  Attorney,  to  support  this  in- 
dictment solely  at  common  law?  If  you  do,  I  have  no  difficulty  upon 
the  subject.    The  indictment  cannot  be  maintained  in  this  court. 

Rawle,  answering  in  the  affirmative,  Chase;,  Justice,  stopped  Mr. 
Levy,  who  was  about  to  reply,  in  support  of  the  motion  in  arrest  in 
judgment,  and  delivered  an  opinion  to  the  following  effect: 

Chase,  Justice.  This  is  an  indictment  for  an  offense  highly  in- 
jurious to  morals,  and  deserving  the  severest  punishment ;  but,  as  it 
is  an  indictment  at  common  law,  I  dismiss,  at  once,  everything  that  has 
been  said  about  the  Constitution  and  laws  of  the  United  States. 

In  this  country,  every  man  sustains  a  two-fold  political  capacity; 
one  in  relation  to  the  state,  and  another  in  relation  to  the  United  States. 
In  relation  to  the  state,  he  is  subject  to  various  municipal  regulations, 
founded  upon  the  state  Constitution  and  policy,  which  do  not  affect  him 
in  his  relation  to  the  United  States ;  for  the  Constitution  of  the  Union 
is  the  source  of  all  the  jurisdiction  of  the  national  government,  so  that 
the  departments  of  the  government  can  never  assume  any  power  that 
is  not  expressly  granted  by  that  instrument,  nor  exercise  a  power  in 
any  other  manner  than  is  there  prescribed.  Besides  the  particular  cas- 
es which  the  eighth  section  of  the  first  article  designates,  there  is  a 
power  granted  to  Congress  to  create,  define,  and  punish  crimes  and 
offenses,  whenever  they  shall  deem  it  necessary  and  proper  by  law  to 
do  so  for  effectuating  the  objects  of  the  government;  and,  although 
bribery  is  not  among  the  crimes  and  offenses  specifically  mentioned,  it 
IS  certainly  included  in  this  general  provision.    The  question,  however, 

1  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §  4. 

2  TLe  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


THE   COMMON   LAW  13 

does  not  arise  about  thej^o^er;  but  about  the  exercise  of  the  power — 
whether  the  courts  of  the  United  States  can  punish  a  man  for  any  act, 
before  it  is  declared  by  a  law  of  the  United  States  to  be  criminal. 
Now,  it  appears  to  my  mind  to  be  as  essential  that  Congress  should 
define  the  offenses  to  be  tried,  and  apportion  the  punishments  to  be  in- 
flicted, as  that  they  should  erect  courts  to  try  the  criminal,  or  to  pro- 
nounce a  sentence  on  conviction. 

It  is  attempted,  however,  to  supply  the  silence,  of  the  Constitution 
and  statutes  of  the  Union  by  resorting  to  the  common  law  for  a  defini- 
tion and  punishment  of  the  offense  which  has  been  committed;  but 
in  my  opinion,  the  United  States,  as  a  federal  government,  have  no 
common  law,  and,  consequently,  no  indictment  can  be  maintained  in 
tfieir  courts  for  offenses  merely  at  the  common  law.  If,  indeed,  the 
United  States  can  be  supposed,  for  a  moment,  to  have  a  common  law, 
it  must,  I  presume,  be  that  of  England ;  and  yet  it  is  impossible  to  trace 
when  or  how  the  system  was  adopted  or  introduced.  With  respect  to 
the  individual  states,  the  difficulty  does  not  occur.  When  the  Ameri- 
can colonies  were  first  settled  by  our  ancestors,  it  was  held,  as  well 
by  the  settlers  as  by  the  judges  and  lawyers  of  England,  that  they 
brought  hither,  as  a  birthright  and  inheritance,  so  much  of  the  common 
law  as  was  applicable  to  their  local  situation  and  change  of  circum- 
stances. But  each  colony  judged  for  itself  what  parts  of  the  common 
law  were  applicable  to  its  new  condition,  and  in  various  modes,  by  leg- 
islative acts,  by  judicial  decisions,  or  by  constant  usage,  adopted  some 
parts  and  rejected  others.  Hence  he  who  shall  travel  through  the  dif- 
ferent states  will  soon  discover  that  the  whole  of  the  common  law  of 
England  has  been  nowhere  introduced,  that  some  states  have  rejected 
what  others  have  adopted,  and  that  there  is,  in  short,  a  great  and  es- 
sential diversity  in  the  subjects  to  which  the  common  law  is  applied, 
as  well  as  in  the  extent  of  its  application.  The  common  law,  therefore, 
of  one  state,  is  not  the  common  law  of  another,  but  the  common  law  of 
England  is  the  law  of  each  state,  so  far  as  each  state  has  adopted  it ; 
and  it  results  from  that  position,  connected  with  the  judicial  act,  that 
the  common  law  will  always  apply  to  suits  between  citizen  and  citizen, 
whether  they  are  instituted  in  a  federal  or  state  court. 

But  the  question  recurs,  when  and  how  have  the  courts  of  the 
United  States  acquired  a  common-law  jurisdiction  in  criminal  cases? 
The  United  States  must  possess  the  common  law  themselves  before 
they  can  communicate  it  to  their  judicial  agents.  Now,  the  United 
States  did  not  bring  it  with  them  from  England,  the  Constitution  does 
not  create  it,  and  no  act  of  Congress  has  assumed  it.  Besides,  what 
is  the  common  law  to  which  we  are  referred?  Is  it  the  common  law 
entire,  as  it  exists  in  England,  or  modified,  as  it  exists  in  some  of  the 
states ;  and  of  the  various  modifications  which  are  we  to  select,  the 
system  of  Georgia  or  New  Hampshire,  of  Pennsylvania  or  Connect- 
icut? 


14  THE    CRIMINAL   LAW— HOW   PEESCKIBED 

Upon  the  whole,  it  may  be  a  defect  in  our  political  institutions,  it 
may  be  an  inconvenience  in  the  administration  of  justice,  that  the 
common-law  authority,  relating  to  crimes  and  punishments,  has  not 
been  conferred  upon  the  government  of  the  United  States,  which  is 
a  government  in  other  respects  also  of  a  limited  jurisdiction;  but 
judges  cannot  remedy  political  imperfections,  nor  supply  any  legisla- 
tive omission.  I  will  not  say  whether  the  offense  is  at  this  time  cog- 
nizable in  a  state  court.  But  certainly  Congress  might  have  provided 
by  law  for  the  present  case,  as  they  have  provided  for  other  cases  of 
a  similar  nature ;  and  yet  if  Congress  had  ever  declared  and  defined 
the  offense,  without  prescribing  a  punishment,  I  should  still  have 
thought  it  improper  to  exercise  a  discretion  upon  that  part  of  the  sub- 
ject.    *     *     * 


II.  Statutes' 


HARTUNG  V.  PEOPLE. 

(Court  of  Appeals  of  New  York,  18G0.    22  N.  Y.  95.) 

De;nio,  j.4  *  *  *  2.  This  leads  me  to  the  second  question  to  be 
considered,  namely,  whether  it  is  competent  for  the  legislature,  after 
the  conviction  of  a  person  prosecuted  for  murder,  to  change  the  punish- 
ment which  the  law  had  annexed  to  the  offence,  for  another  and  dift'er- 
ent  punishment,  as  was  attempted  to  be  done  in  this  case.  It  is  highly 
probable  that  it  was  the  intention  of  the  legislature  to  extend  favor, 
rather  than  increased  severity,  towards  this  convict  and  others  in  her 
situation;  and  it  is  quite  likely  that,  had  they  been  consulted,  they 
would  have  preferred  the  application  of  this  law  to  their  cases,  rather 
than  that  which  existed  when  they  committed  the  offences  of  which 
they  were  convicted.  But  the  case  cannot  be  determined  upon  such 
considerations.  No  one  can  be  criminally  punished  in  this  country,  ex- 
cept according  to  a  law  prescribed  for  his  government  by  the  sovereign 
authority,  before  the  imputed  offence  was  committed,  and  which  ex- 
isted as  a  law  at  that  time.  It  would  be  useless  to  speculate  upon  the 
question  whether  this  would  be  so  upon  the  reason  of  the  thing,  and  ac- 
cording to  the  spirit  of  our  legal  institutions,  because  the  rule  exists 
in  the  form  of  an  express  written  precept,  the  binding  force  of  which 
no  one  disputes. 

8  Tor  a  discussion  of  prinoiplos,  see  Clark  on  Criminal  Law  (3d  Ed.)  §§  5,  6. 
*  I'urt  of  the  opinion  is  omitted. 


STATUTES  15 

No  State  shall  pass  any  ex  post  facto  law,  is  the  mandate  of  the  Con- 
stitution of  the  United  States.  The  present  question  is,  whether  the 
provision  under  immediate  consideration  is  such  a  law,  within  the 
meaning  of  the  Constitution.  I  am  of  opinion  that  it  is.  The  scope 
and  apparent  intention  of  the  act  of  1860  is  to  reduce  the  punishment 
for  murder,  in  certain  cases.  At  present,  we  have  no  concern  with  the 
new  arrangement,  for  in  that  respect  the  act  is  prospective.  But  the 
substituted  punishment  is  made  applicable  to  offences  committed  under 
the  old  law,  where  convictions  have  already  been  had.  Persons  con- 
victed of  murder,  as  that  offence  was  declared  by  the  Revised  Statutes, 
where  the  judgment  has  not  been  executed,  are  to  be  punished  as 
though  convicted  of  murder  in  the  first  degree  under  the  act  of  1860. 
To  abolish  the  penalty  which  the  law  attached  to  the  crime  when  it  was 
committed,  and  to  declare  it  to  be  punishable  in  another  way,  is,  as  it 
respects  the  new  punishment,  the  essence  of  an  ex  post  facto  law. 
Fletcher  v.  Peck,  6  Cranch,  87-138,  3  L.  Ed.  162.  In  this  case.  Chief 
Justice  Marshall  defined  an  ex  post  facto  law  to  be,  one  which  rendered 
an  act  punishable  "in  a  manner  in  which  it  was  not  punishable  when 
it  was  committed."  Chancellor  Kent  has  expressed  his  approval  of 
that  definition,  which,  he  says,  is  distinguished  for  its  comprehensive 
brevity  and  precision.  4  Kent,  409.  Judge  Chase,  in  Calder  v.  Bull, 
3  D'all.  386,  1  L.  Ed.  648,  stated  his  apprehension  of  what  was  meant 
in  the  Constitution  by  the  term  in  question  as  follows:  He  said  such 
laws  were,  "first,  any  law  which  makes  an  act  done  before  the  passing 
of  the  law,  and  which  was  innocent  when  done,  criminal ;  second,  any 
law  which  aggravates  a  crime,  and  makes  it  greater  than  it  was  when 
committed ;  third,  any  law  which  changes  the  punishment,  and  inflicts 
a  greater  punishment  than  the  law  annexed  to  the  crime  when  commit- 
ted;  fourth,  any  law  which  alters  the  legal  rules  of  evidence." 

Neither  of  the  cases  in  which  these  remarks  were  made,  involved 
any  question  as  to  the  kind  or  degree  of  change  in  the  punishment  of 
an  offence  already  committed,  which  might  be  made  without  a  viola- 
tion of  the  Constitution.  A  rule  upon  that  subject  is  now  to  be  laid 
down  for  the  first  time.  In  my  opinion,  then,  it  would  be  perfectly 
competent  for  the  legislature,  by  a  general  law,  to  remit  any  separable 
portion  of  the  prescribed  punishment.  For  instance,  if  the  punishment 
were  fine  and  imprisonment,  a  law  which  should  dispense  with  either 
the  fine  or  the  imprisonment  might,  I  think,  be  lawfully  applied  to  ex- 
isting offences ;  and  so,  in  my  opinion,  the  term  of  imprisonment  might 
be  reduced,  or  the  number  of  stripes  diminished  in  cases  punishable  in 
that  manner.  Anything  which,  if  applied  to  an  individual  sentence, 
would  fairly  fall  within  the  idea  of  a  remission  of  a  part  of  the  sen- 
tence, would  not  be  liable  to  objection.  And  any  change  which  should 
be  referable  to  prison  discipline,  or  penal  administration,  as  its  primary 
object,  might  also  be  made  to  take  effect  upon  past  as  well  as  future 
ofi'ences,  as  changes  in  the  manner  or  kind  of  employment  of  convicts 


16  THE    CRIMINAL   LAW— HOW    PRESCRIBED 

sentenced  to  hard  labor,  the  system  of  supervision,  the  means  of  re- 
straint, or  the  Hke.  Changes  of  this  sort  might  operate  to  mcrease  or 
mitigate  the  severity  of  the  punishment  of  the  convict,  but  would  not 
raise  any  question  under  the  constitutional  provision  we  are  consider- 
ing. The  change  wrought  by  the  act  of  1860,  in  the  punishment  of  ex- 
isting offences  of  murder,  does  not  fall  within  either  of  these  excep- 
tions*! If  it  is  to  be  construed  to  vest  in  the  Governor  a  discretion  to 
determine  whether  the  convict  should  be  executed,  or  remian  a  perpet- 
ual prisoner  at  hard  labor,  this  would  only  be  equivalent  to  what  he 
might  do  under  the  authority  to  commute  a  sentence.  But  he  can,  un- 
der the  Constitution,  only  do  this  once  for  all.  If  he  refuses  the  par- 
don, the  convict  is  executed  according  to  sentence.  If  he  grants  it,  his 
jurisdiction  of  the  case  ends. 

The  act  in  question  places  the  convict  at  the  mercy  of  the  Governor 
in  office  at  the  expiration  of  one  year  from  the  time  of  the  conviction, 
and  of  all  his  successors  during  the  hfetime  of  the  convict.  He  may 
be  ordered  to  execution  at  any  time,  upon  any  notice  or  without  notice. 
Under  one  of  the  repealed  sections  of  the  Revised  Statutes,  it  was  re- 
quired that  a  period  should  intervene  between  the  sentence  and  the 
execution  of  not  less  than  four,  nor  more  than  eight  weeks.  Par.  12. 
If  we  stop  here,  the  change  effected  by  the  statute  is  between  an  exe- 
cution within  a  limited  time  to  be  prescribed  by  the  court,  or  a  pardon 
or  commutation  of  the  sentence  during  that  period,  on  the  one  hand, 
and  the  placing  of  the  convict  at  the  mercy  of  the  executive  magistrate 
,for  the  time,  and  his  successors,  to  be  executed  at  his  pleasure  at  any 
time  after  one  year,  on  the  other.  The  sword  is  indefinitely  suspended 
over  his  head,  ready  to  fall  at  any  time.  It  is  not  enough  to  say,  if 
even  that  can  be  said,  that  most  persons  would  probably  prefer  such  a 
fate  to  the  former  capital  sentence.  It  is  enough  to  bring  the  law  with- 
in the  condemnation  of  the  Constitution,  that  it  changes  the  punish- 
ment, after  the  commission  of  the  offence,  by  substituting  for  the  pre- 
scribed penalty  a  different  one.  We  have  no  means  of  saying  whether 
one  or  the  other  would  be  the  most  severe  in  a  given  case.  That  would 
depend  upon  the  disposition  and  temperament  of  the  convict.  The  leg- 
islature cannot  thus  experiment  upon  the  criminal  law. 

The  law,  moreover,  prescribes  one  year's  imprisonment,  at  hard  la- 
bor, in  a  state  prison,  in  addition  to  the  punishment  of  death.  In  every 
case  of  the  execution  of  a  capital  sentence,  it  must  be  preceded  by  the 
year's  imprisonment  at  hard  labor.  True,  the  concluding  part  of  the 
judgment  cannot  be  executed  unless  the  Governor  concurs,  by  ordering 
the  execution.  But  as  both  parts  may,  in  any  given  case,  be  inflicted, 
and  as  the  convict  is  consequently,  under  this  law,  exposed  to  the  dou- 
ble infliction,  it  is,  within  both  the  definitions  which  have  been  men- 
tioned, an  ex  post  facto  law.  It  changes  the  punishment,  and  inflicts  a 
greater  punishment  than  that  which  the  law  annexed  to  the  crime 
when  committed.    It  is  enough,  in  my  opinion,  that  it  changes  it  in  any 


STATUTES  17 

manner  except  by  dispensing  with  divisible  portions  of  it ;  but,  upon 
the  other  definition  announced  by  Judge  Chase,  where  it  is  implied  that 
the  change  must  be  from  a  less  to  a  greater  punishment,  this  act  can- 
not be  sustained.     *     *     * 

Judgment  reversed  and  new  trial  ordered.    All  the  other  Judges  con- 
curring. 


STEEL  V.  STATE. 

(Supreme  Court  of  Indiana,  3.866.     26  Ind.  82.) 

Appeal  from  the  Ohio  Circuit  Court. 

Ray,  J.  This  was  an  indictment  for  seduction.  The  appellant  was 
tried  and  convicted.  The  verdict  of  the  jury  imposed  imprisonment  in 
the  county  jail  for  thirty  days,  and  assessed  also  a  fine  of  two  hundred 
and  seventy-five  dollars.  The  abstract  complies  with  the  rule  of  this 
court  as  to  one  point  only,  and  therefore  the  only  point  we  shall  de- 
termine is  whether  the  verdict  is  contrary  to  law. 

The  statute  provides  that  the  person  convicted  "shall  be  imprisoned 
in  the  state  prison  for  not  less  than  one,  nor  more  than  three  years, 
and  fined  not  exceeding  five  hundred  dollars,  or  be  imprisoned  in  the 
county  jail  not  exceeding  six  months."    2  G.  &  H.  par.  .15,  p.  441. 

This  language  authorizes  the  jury  to  impose  a  fine  only  in  cases 
where  the  circumstances  attending  the  commission  of  the  offense  au- 
thorize the  imprisonment  of  the  offender  in  the  state  prison.  This  is 
the  plain  import  of  the  words  used.  The  rule  to  be  observed  in  the 
construction  of  penal  statutes  is  thus  stated  by  Chief  Justice  Marshall : 
"The  rule  that  penal  statutes  are  to  be  construed  strictly  is,  perhaps, 
not  much  less  old  than  construction  itself.  It  is  founded  on  the  tender- 
ness of  the  law  for  the  right  of  individuals;  and  on  the  plain  principle 
that  the  power  of  punishment  is  vested  in  the  legislative,  not  in  the 
judicial  department.  It  is  the  legislature,  not  the  court,  which  is  to 
define  a  crime  and  ordain  its  punishment.  *  *  *  The  intention  of 
the  legislature  is  to  be  collected  from  the  words  they  employ.  Where 
there  is  no  ambiguity  in  the  words,  there  is  no  room  for  construction. 
The  case  must  be  a  strong  one  indeed,  which  'would  justify  a  court  in 
departing  from  the  plain  meaning  of  words,  especially  in  a  penal  act, 
in  search  of  an  intention  which  the  words  themselves  did  not  suggest." 
United  States  v.  Wiltberger,  5  Wheat.  76,  5  L.  Ed.  37. 

But  an  examination  of  other  sections  of  the  same  statute  will  dis- 
close that  where  the  legislature  clearly  intended  to  add  the  fine  to  im- 
prisonment, either  in  the  state  prison  or  in  the  county  jail,  they  have 
expressed  such  intention  in  language  of  no  doubtful  significance.  The 
twentieth  section  provides,  that  upon  conviction  of  petit  larceny,  the 
offender  shall  be  fined,  imprisoned  in  the  state  prison  and  disfran- 
MiKELL  Cas.Cb.L. — 2 


18  THE    CKIMINAL   LAW— HOW   PRESCRIBED 

chised,  or  fined,  disfranchised  and  imprisoned  in  the  jail  of  the  proper 
county. 

The  abiHty  of  the  legislature  to  express  an  intention  clearly  is  not, 
therefore,  to  be  questioned,  and  it  is  not  our  province  to  add  to  the  pen- 
alties imposed. 

The  judgment  is  reversed,  and  the  cause  remanded  for  a  new  trial. 


COMMONWEx\LTH  v.  CARTER. 
(Court  of  Appeals  of  Kentucky,  1893.    94  Ky.  527,  23  S.  W.  344.) 

Pryor,  J.  An  indictment  was  returned  in  the  Graves  Circuit  Court 
against  Mark  Hubbard  and  two  others,  charging  them  with  breaking 
into  the  store-house  of  one  Boaz.  The  testimony  showed  that  Hub- 
bard took  the  window  of  the  house  out  and  his  confederates  stood 
watch  a  short  distance  from  the  store-room,  and  when  the  goods  were 
removed  by  Hubbard,  Carter  and  James,  two  confederates,  took  charge 
of  them. 

There  was  a  separate  trial  demanded,  and  Ed  Carter  being  first  tried 
was  acquitted  upon  a  peremptory  instruction  based  upon  the  case  of 
Stamper  v.  Commonwealth,  7  Bush.  612.  There  can  be  no  doubt  of 
the  correctness  of  the  rule  that,  in  statutory  offenses,  where  the  plain 
intent  of  the  statute  is  to  inflict  punishment  only  on  the  person  actually 
committing  the  offense,  others  can  not  be  brought  within  its  provisions 
as  principals  upon  proof  that  they  were  aiders  and  abettors.  The  case 
of  Frey  v.  Commonwealth,  reported  in  83  Ky.  191,  was  an  indictment 
under  a  statute  enacted  to  prevent  the  destruction  of  bastard  children 
by  the  mother.  The  statute  reads:  'Tf  any  woman  be  delivered  of  any 
issue  of  her  body,  which,  being  born  alive,  would  be  a  bastard,  shall  en- 
deavor *  *  *  iQ  conceal  the  birth  thereof,  *  *  *  she  shall 
be  confined  in  the  penitentiary,"  &c.  Gen.  St.  1888,  c.  29,  art.  4,  §  14. 
This  statute  was  intended  to  apply  alone  to  the  mother,  and  illustrates 
the  distinction  between  the  cases. 

In  Evans  v.  Commonwealth,  12  S.  W.  768,  769,  11  Ky.  Law  Rep. 
573,  the  statute  provided  that  "if  any  one  shall  wilfully  and  unlawfully 
burn"  any  house  whatever,  he  shall  be  confined  in  the  penitentiary. 
This  statute  was  held  to  apply  to  aiders  and  abettors.  Those  who  were 
present  aiding  and  abetting  in  such  cases  are  as  much  principals  as  the 
ones  applying  the  torch  or  entering  the  building,  and  the  doctrine  of 
Stamper  v.  Commonwealth  makes  the  rule  too  broad  when  saying  that, 
where  the  offense  is  created  by  statute  against  one  actually  committing 
the  offense,  those  aiding  and  abetting  are  not  amenable  as  principals  to 
its  provisions.  There  is  as  much  reason  for  i)unishing  the  aiding  and 
abetting  in  a  felony  created  by  statute  as  there  is  in  a  felony  at  common 
law.     So  the  doctrine  of  Stamper  v.  Commonwealth  is  overruled ;   but 


STATUTES 


19 


where  In  cases  it  is  plain  from  the  nature  of  the  offense  made  a  felony 
by  statute,  that  its  provisions  were  only  intended  to  affect  the  party 
actually  committing  the  offense,  the  doctrine  of  Stamper  v.  Common- 
wealth should  apply. 

As  this  is  an  appeal  by  the  Commonwealth,  the  clerk  is  directed  to 
certify  the  opinion  to  the  court  below. 


COMMONWEALTH  v.  COOLEY. 

(Supreme  Judicial  Court  of  Massachusetts,  1S30.    10  Pick.  [27  Mass.]  37.) 

Per  Curiam.'*  *  *  *  'p^g  defendant  moves  in  arrest  of  judg- 
ment, that  the  crime  for  which  he  is  indicted  is  not  an  offence  at  com- 
mon law;  and  if  it  is,  that  the  common  law  on  this  subject  has  been 
superseded  by  our  statute  of  1814—15,  c.  174.  We  think  it  clear  that 
it  is  an  offence  at  common  law,  and  there  is  an  express  decision  to  that 
effect  in  2  T.  R.  7Zo.  The  reason  why  cases  of  this  sort  are  not  to  be 
found  in  the  earlier  reports  is  very  obvious,  namely,  that  the  dissection 
of  human  bodies  was  not  so  extensively  practised  in  former  times. 
And  this  will  account  for  the  fact,  that  few,  if  any  prosecutions  at  com- 
mon law  for  this  offence,  have  taken  place  in  this  commonwealth. 

The  question  then  is,  whether  the  common  law  has  been  superseded 
here  by  the  statute  of  1814.  And  the  Court  are  of  opinion  that  it  has 
been.  The  whole  subject  has  been  revised  by  the  legislature.  The  time 
for  prosecuting  the  offence,  and  the  punishment  are  limited  by  the  stat- 
ute, and  provision  likewise  is  made  for  the  removal  of  dead  bodies.  A 
statute  is  impliedly  repealed  by  a  subsequent  one  revising  the  whole 
subject  matter  of  the  first;  Bartlett  v.  King,  12  Mass.  R.  545  ;  Nichols 
V.  Squire,  5  Pick,  168;  and  in  the  case  of  a  statute  revising  the  com- 
mon law,  the  implication  is  at  least  equally  strong.  At  common  law  it 
was  criminal  to  dig  up  and  remove  a  dead  body ;  but  that  would  not 
now  be  an  offence  in  this  commonwealth,  since  the  statute  makes  pro- 
vision for  the  removal  of  a  dead  body  under  a  license.  If  the  common 
law  were  in  force,  it  should  seem  that  the  license  would  not  be  a  de- 
fence to  an  indictment  at  common  law.  The  common  law  and  the  stat- 
ute would  be  at  variance  with  each  other.    Judgment  arrested. 

6  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


20  THE   CRIMINAL  LAW — HOW   PRESCRIBED 

STATE  V.  MANSEL. 

(Supreme  Court  of  South  Carolina,  1S9S.    52  S.  C.  4G8,  30  S.  E.  4S1.) 

Indictment  against  Adam  Mansel  for  taking  orders  for  whisky. 
From  judgment  against  defendant,  he  appeals. 

Gary,  J.  The  appellant  was  indicted,  tried,  and  convicted,  at  the 
July,  1897,  term  of  the  Court  for  Pickens  County,  for  a  violation  of 
section  41  of  the  Dispensary  Act,  approved  in  March,  1896 — 22  Stat. 
147— which  is  as  follows:  "Section  41.  That  it  shall  be  unlawful  for 
any  person  to  take  or  to  solicit  orders,  or  to  receive  money  from  other 
persons  for  the  purchase  or  shipment  of  any  alcoholic  liquors  for  or  to 
such  other  persons  in  this  State,  except  for  liquors  to  be  purchased  and 
shipped  from  the  dispensary;  and  any  person  violating  this  section, 
upon  conviction,  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall 
be  punished  by  imprisonment  for  a  term  of  not  less  than  three  months 
nor  more  than  twelve  months,  or  by  a  fine  of  not  less  than  $100  nor 
more  than  $500."  The  indictment  alleged  that  the  offense  was  com- 
mitted on  the  13th  of  March,  1897.  The  dispensary  act  of  1896  was 
amended  by  an  act,  approved  5th  March,  1897,  by  striking  out  section 
41,  hereinbefore  mentioned — 22  Stat.  541.  The  act  of  1897  went  into 
effect  on  the  twentieth  day  after  its  approval  by  the  executive.  The 
offense  was,  therefore,  committed  while  the  act  of  1896  was  in  force 
and  effect. 

Upon  the  hearing  of  the  case  on  appeal,  the  appellant  raised  the 
question  that  the  Court  of  General  Sessions  did  not  have  jurisdiction 
of  the  case,  as  the  section  of  the  statute  under  which  the  defendant 
was  indicted  was  repealed  before  he  was  convicted  and  sentenced. 
The  following  principles  are  deduced  from  the  authorities,  where  a 
person  commits  an  offense  under  a  statute  which  is  repealed  by  a  subse- 
quent statute  before  sentence  is  pronounced  upon  him : 

1.  When  the  second  act  prescribed  a  greater  punishment  than  the 
first  act,  the  offending  party  may  be  punished  under  the  first  act. 
2.  When  the  punishment  in  the  second  act  is  less  than  is  prescribed 
in  the  first  act,  the  party  convicted  can  be  punished  only  to  the  extent 
prescribed  in  the  second  act.  3.  When  a  statute  contains  a  section 
prescribing  a  punishment  for  a  violation  of  the  section,  and  this  sec- 
tion is  repealed  after  a  party  has  violated  the  section,  but  before  sen- 
tence is  imposed  upon  him,  he  cannot  be  punished  for  such  violation, 
or  stated  in  another  form :  4.  When  the  second  act  repealing  the  first 
act  makes  no  provision  for  punishment,  the  Court  is  without  jurisdic- 
tion in  the  premises,  and  cannot  impose  sentence  upon  the  party  con- 
victed. The  question  of  jurisdiction  raised  by  the  Appellant  must  be 
sustained.  As  the  Court  did  not  have  jurisdiction  of  the  case,  it  would 
not  be  proper  for  this  Court  to  consider  the  other  questions  raised  by 
the  exceptions. 


STATUTES  21 

It  is  therefore,  the  judgment  of  this  Court,  that  the  judgment  of  the 
Circuit  Court  be  reversed,  and  the  indictment  quashed  for  want  of 
jurisdiction. 

Mr.  Justice  Pope;  concurs  in  result. 


CITY  OF  KANSAS  v.  CLARK. 

(Supreme  Court  of  Missouri,  1878.     68  Mo.  588.) 

Sherwood,  C.  J.  The  defendant  prosecuted  under  an  ordinance 
for  keeping  a  gaming  table  contrary  thereto,  was  convicted  before  the 
recorder,  and  appealed  to  the  criminal  court,  where  the  defendant  being 
acquitted,  the  city  has  appealed.  ^ 

I.  The  transcript  from  the  recorder  shows  the  arrest  and  convic- 
tion, oh  the  30th  day  of  September,  1874,  and  then  a  few  lines  below, 
the  granting  of  an  appeal.  We  will  presume,  therefore,  that  the  ap- 
peal was  taken  on  the  day  of  the  arrest  and  conviction,  since  it  ap- 
parently was  granted  on  that  day,  and  since,  also,  we  may  well  pre- 
sume that  the  recorder  would  not  grant  an  appeal  unless  applied  for 
before  the  expiration  of  ten  days.  The  motion  of  the  city  to  dismiss 
the  appeal  taken  to  the  criminal  court,  because  not  taken  within  that 
time,  was  properly  overruled. 

II.  The  provisions  of  2  Wag.  Stat.  §  7,  article  4,  p.  895,  relative  to 
the  effect  of  the  repeal  of  statutory  provisions,  has  no  application  to 
the  present  case,  the  present  prosecution  being  founded,  not  on  a  stat- 
ute, but  on  a  city  ordinance,  there  being  an  essential  difference  be- 
tween the  two.  If,  however,  the  ordinance  which  counsel  for  the  city 
refers  to  in  his  brief  as  being  of  a  similar  nature  to  the  statute  above 
mentioned,  were  contained  as  stated  in  the  bill  of  exceptions,  this 
would  be  no  doubt  sufficient,  because  the  same  power  which  could  enact 
ordinances  could  also  provide  that  the  repeal  of  them  should  not  affect 
any  pending  prosecution  ;  but  no  such  ordinance  as  that  counsel  refers  to 
can  be  found  in  the  record,  having,  doubtless,  been  omitted  therefrom 
through  inadvertence.  In  the  absence,  therefore,  of  such  an  ordinance, 
we  must  sanction  the  action  of  the  court  in  holding  that  the  repeal  of 
the  ordinance  whereon  the  prosecution  was  bottomed  abated  that  pros- 
ecution, and  in  giving  on  that  ground  the  declaration  in  the  nature  of 
a  demurrer  to  the  evidence. 

III.  The  only  question  remaining  is,  as  to  the  city's  right  of  appeal 
from  a  judgment  of  acquittal.  Our  statute,  2  Wag.  Stat.  pars.  13,  14, 
p.  1114,  has  no  bearing  on  this  question,  as  those  sections  relate  only 
to  appeals  by  the  State.  Nor  do  we  regard  the  violation  of  the  ordi- 
nance under  consideration  as  a  crime,  since  "a  crime  *  *  *  jg  an 
act  comiTiitted  in  violation  of  a  public  law"  (4  Black.  Com.  5) ;  a  law 


22  THE   CRIMINAL   LAW — HOW   PRESCRIBED 

•co-extensive  with  the  boundaries  of  the  State  which  enacts  it.  Such  a 
definition  is  obviously  inappHcable  to  a  mere  local  law  or  ordinance, 
passed  in  pursuance  of,  and  in  subordination  to,  the  general  or  public 
law,  for  the  promotion  and  preservation  of  peace  and  good  order  in  a 
particular  locality,  and  enforced  by  the  collection  of  a  pecuniary  pen- 
alty. Williams  v.  City  Council  of  Augusta,  4  Ga.  509.  In  the  City 
of  Goshen  v.  Croxton,  .34  Ind.  239,  it  was  held  that  though  a  suit  be- 
fore the  mayor  to  recover  a  penalty  for  violation  of  a  city  ordinance 
was  instituted  by  the  issuance  of  a  warrant  and  the  arrest  of  the  de- 
fendant, yet  that  such  a  procedure  was  but  a  civil  suit.  In  Baldwin 
V.  City  of  Chicago,  68  111.  418,  it  was  held  that  a  proceeding  by  the 
city  for  a  violation  of  its  charter  was  civil  in  form  and  only  quasi 
criminal  in  character,  and  that  the  city  under  a  charter  provision  al- 
lowing appeals  and  changes  of  venue  from  police  justices  in  all  cases 
was  as  much  entitled  as  any  other  suitor  to  an  appeal,  although  not 
expressly  named  in  such  provision.  Here,  however,  the  charter  of 
plaintiff  gives  direct  recognition  to  the  right  of  the  city  to  appeal  "in 
any  judicial  proceeding."    Laws  1875,  p.  262,  §  10. 

Holding  these  views,  we  should  reverse  the  judgment  and  remand 
the  cause,  but  for  the  fact  that  the  ordinance  whereon  this  prosecution 
was  based,  was  repealed,  and  no  ordinance  has  been  preserved  in  the 
bill  of  exceptions  authorizing  the  prosecution  of  actions  for  penalties 
which  accrued  to  the  city  prior  to  the  repeal  of  the  ordinance  which 
had  been  violated.  Judgment  affirmed.  All  concur,  except  Napton 
and  Hough,  ]].,  who  dissent. 

Hough,  J.  (dissenting).  The  City  of  Kansas  is  authorized  by  its 
V  charter  to  pass  ordinances  for  the  suppression  of  gaming  and  gambling 
houses,  and  to  punish  violations  thereof  by  fine  and  imprisonment. 
Acts  of  1875,  204,  207,  art.  3,  par.  1.  Where  an  offense,  which  is  de- 
clared to  be  a  crime  by  the  laws  of  the  State  and  punishable  there- 
under, is  also  made  punishable  under  the  charter  and  ordinances  of  the 
city,  a  conviction,  or  acquittal,  of  such  offense  by  a  municipal  cor- 
poration court,  is  a  bar  to  a  prosecution  for  the  same  oft'ense  in  the 
State  courts.  State  v.  Simonds,  3  Mo.  414 ;  State  v.  Cowan,  29  Mo. 
330;  State  v.  Thornton,  37  Mo.  360.  It  would  seem,  therefore,  that 
a  prosecution  for  gambling,  in  the  corporation  court,  upon  an  infor- 
mation filed  by  the  city  attorney,  should  be  regarded  as  a  criminal  pros- 
ecution. In  the  case  of  the  State  v.  Gordon,  60  Mo.  383,  it  was  held, 
that  exclusive  jurisdiction  was  conferred  upon  the  city  of  Liberty  by 
its  charter  to  punish  certain  crimes  committed  within  its  corporate  lim- 
its. It  could  not  certainly  be  seriously  contended  that  proceedings  in- 
stituted by  the  city  for  that  purpose  were  not  criminal  proceedings, 
and  surely  the  fact  that  the  jurisdiction  is  concurrent  instead  of  ex- 
chisive,  can  make  no  difference  in  the  nature  of  the  proceedings.  The 
legislature  declares  the  crime  and  the  city  is  authorized  to  punish  it. 
In  such  cases  the  city  simply  exercises  a  delegated  authority;  it  acts 


STATUTES  23 

for,  and  in  lieu  of,  the  State,  and  is,  therefore,  entitled  to  appeal  in 
those  cases  only  in  which  the  State  would  have  a  right  of  appeal,  if 
the  prosecution  were  conducted  in  its  name.  Vide,  also,  sections  2 
and  3  of  the  act  establishing  the  criminal  court  of  Jackson  county. 
Acts  1871,  p.  110,  §§  2,  3.  Section  10,  art.  13,  of  the  city  charter  (Acts 
1875,  p.  262)  does  not  give  to  the  city  a  right  of  appeal  in  any  case. 
Napton,  J.,  concurs. 


STATE  ex  rel.  ERICKSON  v.  WEST. 
(Supreme  Court  of  Minnesota,  1SS9.    42  Minn.  147,  43  N.  W.  845.) 

Mitchell,  J.*  Upon  complaint  and  warrant  the  defendant  was 
arrested,  tried,  and  convicted  before  the  municipal  court  of  Minne- 
apolis of  a  violation  of  a  city  ordinance  relative  to  misdemeanors, 
breaches  of  the  peace,  and  disorderly  conduct,  and  sentenced  "to  pay 
a  fine  of  $100,  and  be  imprisoned  in  the  workhouse  of  the  city  for  the 
period  of  90  days,  and,  in  default  of  payment  of  said  fine,  be  commit- 
ted for  the  further  period  of  90  days  in  addition  thereto."  This  sen- 
tence was  in  accordance  with  the  provisions  of  the  ordinance,  and  ;jo 
question  is  made  but  that  the  ordinance  is  authorized  by  the  city 
charter.  Neither  are  we  referred  to  any  other  ordinance  amending 
the  one  in  question.  Another  ordinance  provides  for  the  establish- 
ment of  a  city  workhouse,  and  for  keeping  at  hard  labor  therein  any 
person  convicted  of  an  offence  before  the  municipal  court  subjecting 
such  offender  to  imprisonment  under  the  ordinances  of  the  city.  On 
this  judgment  of  conviction  a  mittimus  was  issued,  committing  the 
defendant  to  the  custody  of  the  superintendent  of  the  workhouse,  to 
be  by  him  there  kept  at  hard  labor  for  the  period  of  90  days,  and  also 
the  further  period  of  90  days  unless  he  should  sooner  pay  the  $100 
fine  or  be  sooner  discharged  by  law.  Upon  a  writ  of  habeas  corpus  the 
defendant  was  discharged  by  a  judge  of  the  district  court,  on  the 
ground  that  his  imprisonment  was  illegal.  From  this  order  the  state 
appeals. 

The  point  made  against  the  judgment  of  the  municipal  court  is  that 
it  was  absolutely  void,  because  that  court  had  no  jurisdiction  to  try 
the  case.  The  contention  is  that  violations  of  municipal  ordinances, 
punishable  by  fine  or  imprisonment,  are  "criminal  oft'ences"  within  the 
meaning  of  article  1,  par.  7,  of  the  constitution  of  the  state,  which  pro- 
vides that  "no  person  shall  be  held  to  answer  for  a  criminal  oft'ence 
unless  on  the  presentment  or  indictment  of  a  grand  jury,  except 
*  *  *  in  cases  cognizable  by  justices  of  the  peace,"  which  last  are, 
by  article  6,  par.  8,  of  the  same  instrument,  limited  to  cases  where 
punishment  does  not  exceed  three  months'  imprisonment,  or  a  fine  not 

6  Part  of  the  opinion  is  omitted. 


24  THE    CRIMINAL   LAW — HOW   PKESCRIBED 

exceeding  $100.  It  is  very  clear  that  where  the  punishment  may  be 
both  fine^'and  imprisonment  a  criminal  offense  is  not  within  the  juris- 
diction of  a  justice  of  the  peace.  Hence  it  follows,  if  violations  of 
municipal  ordinances  are  criminal  offences  within  the  meaning  of  the 
constitution,  that  wherever  the  prescribed  punishment,  as  in  the  present 
case,  may  exceed  three  months'  imprisonment  or  $100  fine,  a  person 
can  only  be  held  to  answer  for  them  on  presentment  or  indictment  of  a 
grand  jury.     *     *     * 

Hence,  whether  it  is  within  the  power  of  the  legislature  to  confer 
upon  the  municipal  or  any  other  court  jurisdiction  to  try,  on  complaint, 
and  without  indictment,  cases  for  violations  of  municipal  ordinances, 
where  the  punishment  prescribed  may  exceed  90  days'  imprisonment 
or  $100  fine,  resolves  itself  into  the  question  whether  such  offences 
are  criminal  within  the  meaning  of  article  1,  par.  7,  of  the  constitu- 
tion.    *     *     * 

The  question  now  before  us  is  therefore  res  Integra,  and  our  con- 
clusion is  that  oft'ences  for  the  violation  of  municipal  ordinances,  to 
which  a  penalty,  such  as  fine  or  imprisonment,  is  attached  as  a  punish- 
ment, are  "criminal  off'ences"  within  the  meaning  of  the  constitutional 
provision  referred  to.  They  come  strictly  within  the  definition  of 
"crimes  or  criminal  offences."  The  terms  "crime,"  "off'ence,"^  and 
"criminal  oft'ence"  are  all  synonymous,  and  ordinarily  used  inter- 
changeably, and  include  any  breach  of  law  estabHshed  for  the  protec- 
tion of  the  public,  as  distinguished  from  an  infringement  of  mere  pri- 
vate rights,  for  which  a  penalty  is  imposed  or  punishment  inflicted  in  any 
judicial  proceeding.  As  said  in  State  v.  Cantieny,  34  Minn.  1,  24  N. 
W.  458,  tbe  term  includes  any  punishable  violation  of  law,  the  doing 
that  which  a  penal  law  forbids,  or  omitting  to  do  what  it  commands, 
and  hence  includes  all  violations  of  municipal  ordinances  punishable 
by  fine  or  imprisonment.  A  municipal  ordinance  is  as  much  a  law  for 
the  protection  of  the  public  as  is  a  criminal  statute  of  the  state,  the 
only  difference  being  that  the  one  is  designed  for  the  protection  of  the 
municipality  and  the  other  for  the  protection  of  the  whole  state,  and 
in  both  cases  alike  tbe  punishment  is  imposed  for  the  violation  of  a 
public  law.  If  the  state  itself,  directly,  should  make  the  act  an  oft'ence, 
and  prescribe  the  punishment,  there  could  be  no  question  but  that  the 
act  would  be  a  "crime"  and  the  prosecution  of  it  a  "criminal  prosecu- 
tion," within  the  meaning  of  the  constitution ;  and  how  can  it  make 
any  difference,  either  in  the  intrinsic  nature  of  the  thing  or  in  the  con- 
sequences to  the  accused,  whether  the  state  docs  this  itself,  or  delegates 
the  power  to  pass  the  law  to  the  municipal  authorities?  Again,  if  the 
provisions  of  the  constitution  do  not  apply  to  such  prosecutions,  there 
is  practically  no  limitation  upon  the  power  of  tbe  legislature  to  dele- 
gate to  tiicse  municipalities  authority  to  try  and  punish  summarily, 
without  indictment,  for  violations  of  their  ordinances,  except,  possi- 
bly, the  implied  and  somewhat  indefinite  one  that  the  punishment  shall 


STATUTES  25 

not  be  cruel,  unusual,  or  disproportionate  to  the  offence.  The  exer- 
cise of  any  such  unlimited  and  indefinite  power  to  summarily  prose- 
cute and  punish  would  result  in  gross  violations  of  the  spirit  and  evi- 
dent meaning  of  the  constitution. 

But,  finally,  if  these  are  not  "criminal  offences,"  and  convictions  of 
them  convictions  of  "crime,"  within  the  meaning  of  the  constitution, 
then,  under  article  1,  par.  2,  of  that  instrument,  forbidding  "involun- 
tary servitude  in  the  state,  otherwise  than  in  the  punishment  of  crime 
whereof  the  party  shall  have  been  duly  convicted,"  a  person  convicted 
of  a  violation  of  a  municipal  ordinance  could  never  be  kept  at  hard 
labor  during  the  term  of  his  imprisonment,  and  the  police  power  of 
municipalities  would  be  deprived  of  what  has  been  from  time  imme- 
morial its  most  efficient  and  salutary  means  of  preserving  good  order 
and  enforcing  obedience  to  their  by-laws,  as  well  as  of  protecting  the 
health  and  morals  of  those  convicted  of  the  violation  of  such  laws. 
There  is  nothing  better  settled  than  that  enforced  labor  is  "involuntary 
servitude"  within  the  meaning  of  such  constitutional  provisions,  and 
there  is  no  room  for  construing  the  word  "crime"  in  this  connection 
as  used  in  a  dift'erent  sense  from  that  in  which  the  expression  "crim- 
inal oft'ence"  is  used  in  section  7. 

We  are  not  called  upon  to  determine  what  or  how  severe  penalties 
the  legislature  may  authorize  municipal  corporations  to  impose  for  vio- 
lations of  their  ordinances,  or  how  extensive  criminal  jurisdiction  it 
may  confer  upon  their  municipal  courts;  but  we  are  quite  clear  that 
violations  of  such  ordinances  to  which  a  punishment  is  attached  are 
"criminal  off"ences" ;  and  if  the  prescribed  punishment  is  or  may  be 
greater  than  three  months'  imprisonment,  or  $100  fine,  the  accused  can 
be  required  to  answer  for  them  only  upon  the  indictment  or  informa- 
tion of  a  grand  jury;  and  if  the  legislature  assumes  to  confer  upon  any 
court  jurisdiction  to  try  such  cases,  it  must  provide  the  appropriate 
judicial  machinery,  to  wit,  a  grand  jury,  for  doing  this  in  a  constitu- 
tional way,  wdiich  has  not  been  done  in  the  case  of  the  municipal  court 
of  Minneapolis.  As  now  constituted,  that  court  has  no  jurisdiction 
to  try  any  criminal  case,  either  under  the  state  laws  or  city  ordinances, 
where  the  prescribed  punishment  exceeds  three  months'  imprisonment 
of  $100  fine.  It  follows  that  that  court  had  no  jurisdiction  to  try  a 
case  for  a  violation  of  the  ordinance  under  which  the  defendant  was 
convicted,  and  that  its  judgment  therein  was  therefore  absolutely  void, 
and  defendant's  imprisonment  illegal,  and  without  authority  of  law. 
The  judgment  being  not  merely  erroneous  or  irregular,  but  absolutely 
void  for  want  of  jurisdiction  to  try  the  case  at  all,  or  to  render  any 
judgment  whatever  therein,  there  is  no  question  under  any  of  the  au- 
thorities but  that  this  may  be  taken  advantage  of  on  habeas  corpus, 
and  the  prisoner  discharged.  This  case  and  those  of  State  ex  rel. 
Abel,  Bunnell,  Miller,  Norman  Olson,  and  Conley,  respectively,  are  all 
alike,  and  in  each  the  order  appealed  from  is  affirmed. 


26  THE   MENTAL   ELEMENT   IN    CRIME 


THE  MENTAL  ELEMENT  IN  CRIME 
I,  Motive  Not  Intent  ^ 


SCHMIDT  V.  UNITED  STATES. 

{Circuit  Court  of  Appeals,  NintTi  Circuit,  1904.    133  Fed.  257,  66  C.  C.  A.  389.) 

Gilbert,  Circuit  Judge.^  The  plaintiff  in  error  was  indicted  and 
prosecuted  in  the  United  States  Circuit  Court  for  the  District  of  Wash- 
ington upon  an  indictment  containing  ten  counts,  in  each  of  which  he 
was  charged  with  swearing  falsely  in  certain  naturalization  proceed- 
ings pending  in  the  superior  court  qf  the  state  of  Washington  for 
Walla  Walla  county.     *     *     * 

Error  is  assigned  to  the  refusal  of  the  court  to  instruct  the  jury 
"that,  when  the  evidence  fails  to  show  any  motive  to  commit  the  crime 
charged  on  the  part  of  the  accused,  this  is  a  circumstance  in  favor 
of  his  innocence ;  and  in  this  case,  if  the  jury  find  upon  careful  ex- 
amination of  all  the  evidence  that  it  fails  to  show  any  motive  on  the 
part  of  the  accused  to  commit  the  crime  charged  against  him,  then 
this  is  a  circumstance  which  the  jury  ought  to  consider,  in  connection 
with  all  the  other  evidence  in  the  case,  in  making  up  their  verdict." 

This  instruction  so  requested,  while  proper  in  some  cases,  had  no 
rightful  application  to  the  evidence  in  the  case  before  the  court.  It 
was  clearly  proven  by  the  direct  testimony  of  witnesses,  and  it  was 
not  disputed,  that  the  plaintiff  in  error  went  to  these  aliens,  who  had 
not  been  in  the  United  States  the  requisite  time  to  entitle  them  to 
citizenship,  and  actively  induced  them  to  appear  before  the  court  and 
take  out  their  final  papers,  and  in  that  connection  falsely  testified  be- 
fore the  court  as  charged  in  the  indictment.  The  jury  may  inquire 
into  the  motive  of  a  defendant  when  it  is  necessary  to  resort  to  it  in 
arriving  at  the  ultimate  fact  that  it  was  he  who  committed  the  crime 
charged.  The  motive  then  becomes  an  aid  in  completing  the  proof 
of  the  commission  of  the  act;  and  in  such  a  case  it  is  proper  to  charge 
the  jury  that  the  absence  of  motive,  if  they  fail  to  find  one,  may  be 
taken  into  consideration  in  determining  the  question  whether  the 
crime  was  committed  by  the  accused  or  by  some  other.  The  instruc- 
tion is  particularly  applicable  to  cases  where  the  proof  consists  in 

1  l''or  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §  14. 
'■!  I'iirt  oi  the  opinion  of  (jiili)crt,  Circuit  .Judge,  and  aU.  of  the  dissenting 
opinion  of  Itoss,  Circuit  Judge,  are  omitted. 


MOTIVE    NOT    INTENT  27 

circumstantial  evidence.  In  such  a  case  it  may  be  controlling'.  Peo- 
ple V.  Fitzgerald,  156  N.  Y.  253,  50  N.  E.  846.  That  the  plaintiff 
in  error  did  falsely  testify  was  not  denied.  His  motive  in  so  doing 
was  not  disclosed,  and  it  was  not  necessary  that  it  should  be.  While 
the  prosecution  is  never  required  to  prove  a  motive  for  the  crime, 
it  is  always  permitted  to  do  so.  In  the  present  case  the  proof  was 
not  circumstantial,  but  was  direct,  and  was  undisputed.  To  have 
given  the  charge  requested  would  have  been  to  tell  the  jury  that  they 
were  at  liberty,  in  determining  whether  they  would  give  credence  to  the 
positive  and  uncontroverted  testimony  of  witnesses  to  the  overt  act  of 
the  plaintiff  in  error,  to  be  influenced  by  the  fact  that  they  failed  to 
iind  a  motive  for  his  act.  Such  is  not  the  law. 
The  judgment  of  the  District  Court  is  affirmed. 


REX  v.  REGAN. 

(Central  Criminal  Court,  1850.    4  Cox,  C.  C.  335.) 

The  prisoner  was  indicted  for  maUciously  and  feloniously  setting 
iire  to  a  certain  building,  with  intent  to  injure  one  Joseph  Adams. 

From  the  evidence  it  appeared  that  the  prisoner  had  given  notice 
of  other  fires,  and  had  claimed  the  reward  usually  paid  on  such  occa- 
sions at  the  engine  station,  and  he  had  apparently  no  other  motive 
in  setting  fire  to  the  premises  in  question  than  the  expectation  of 
getting  such  reward. 

Payne,  for  the  prisoner,  contended  before  the  jury  that  if  they  be- 
lieved that  the  prisoner's  intent  was  not  to  injure  the  prosecutor,  but 
merely  to  obtain  the  reward  for  giving  the  earliest  information,  that 
he  could  not  be  convicted  upon  the  indictment. 

ErlU,  J.  I  entirely  dissent  from  this  view  of  the  case.  If  the  pris- 
oner willfully  set  fire  to  the  premises,  the  jury  will  be  perfectly  justi- 
fied in  finding  that  his  intent  was  to  injure  the  person  whose  prop- 
erty they  were,  and  who  would  necessarily  be  injured  by  such  an  act, 
although  he  might  have  an  ulterior  object  of  obtaining  the  reward. 
There  have  been  several  cases  recently  of  persons  administering 
poison  to  others  for  the  purpose  of  obtaining  the  money  for  which 
their  lives  were  insured,  but  no  one  ever  dreamed  that,  because  they 
were  actuated  by  such  a  motive,  they  would  be  entitled  to  an  acquittal 
when  indicted  for  administering  poison  with  intent  to  kill. 

The  prisoner  was  found  guilty. 


C'  ■ 

28  THE    MENTAL    ELEMENT   IN    CEIME 

II.  Specific  Intent  * 


REGINA  V.  PEMBLITON. 

(Court  of  Criminal  Appeal,  1874.    12  Cox,  C.  C.  607.) 

Lord  Coleridge,  C.  J.*  I  ani  of  opinion  that  this  conviction  must 
be  quashed.  The  facts  of  the  case  are  these :  The  prisoner  and 
some  other  persons  who  had  been  drinking  in  a  pubhc  house  were 
turned  out  of  it  at  about  lip.  m.  for  being  disorderly,  and  they  then 
began  to  fight  in  the  street  near  the  prosecutor's  window.  The  pris- 
oner separated  himself  from  the  others,  and  went  to  the  other  side 
of  the  street,  and  picked  up  a  stone,  and  threw  it  at  the  persons  he 
had  been  fighting  with.  The  stone  passed  over  their  heads,  and  broke 
a  large  plate  glass  window  in  the  prosecutor's  house,  doing  damage 
to  an  amount  exceeding  £5.  The  jury  found  that  the  prisoner  threw 
the  stone  at  the  people  he  had  been  fighting  with,  intending  to  strike 
one  or  more  of  them  with  it,  but  not  intending  to  break  the  window. 
The  question  is  whether,  under  an  indictment  for  unlawfully  and  ma- 
liciously committing  an  injury  to  the  window  in  the  house  of  the  pros- 
ecutor, the  proof  of  these  facts  alone,  coupled  with  the  finding  of  the 
jury,  will  do?  Now  I  think  that  is  not  enough.  The  indictment  is 
framed  under  St.  24  &  25  Vict.  c.  97,  §  51.  The  act  is  an  act  relating 
to  malicious  injuries  to  property,  and  section  51  enacts  that  whoso- 
ever shall  unlawfully  and  maliciously  commit  any  damage,  etc.,  to  or 
upon  any  real  or  personal  property  whatsoever  of  a  public  or  a  pri- 
vate nature,  for  which  no  punishment  is  hereinbefore  provided,  to  an 
amount  exceeding  i5,  shall  be  guilty  of  a  misdemeanor.  There  is  also 
the  fifty-eighth  section,  which  deserves  attention :  "Every  punish- 
ment and  forfeiture  by  this  act  imposed  on  any  person  maliciously 
committing  any  offense,  whether  the  same  be  punishable  upon  indict- 
ment or  upon  summary  conviction,  shall  equally  apply  and  be  en- 
forced, whether  the  offense  shall  be  committed  from  malice  conceived 
against  the  owner  of  the  property  in  respect  of  which  it  shall  be  com- 
mitted, or  otherwise."  It  seems  to  me,  on  both  these  sections,  that 
what  was  intended  to  be  provided  against  by  the  act  is  the  willfully 
doing  an  unlawful  act,  and  that  the  act  must  be  willfully  and  inten- 
tionally done  on  the  part  of  the  person  doing  it  to  render  him  liable 
to  be  convicted.  Without  saying  that,  upon  these  facts,  if  the  jury 
had  found  that  the  prisoner  had  been  guilty  of  throwing  the  stone 

3  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §  lo*. 
*  The  statement  of  facts  is  omitted. 


SPECIFIC   INTENT 


29 


recklessly,  knowing  that  there  was  a  window  near  which  it  might 
probably  hit,  I  should  have  been  disposed  to  interfere  with  the  con- 
viction, yet  as  they  have  found  that  he  threw  the  stone  at  the  people 
he  had  been  fighting  with,  intending  to  strike  them,  and  not  intending 
to  break  the  window,  I  think  the  conviction  must  be  quashed.  I  do 
not  intend  to  throw  any  doubt  on  the  cases  which  have  been  cited,  and 
which  show  what  is  sufficient  to  constitute  malice  in  the  case  of  mur- 
der. They  rest  upon  the  principles  of  the  common  law,  and  have  no 
application  to  a  statutory  offense  created  by  an  act  in  which  the  words 
are  carefully  studied. 

Blackburn,  J.  I  am  of  the  same  opinion,  and  I  quite  agree  that 
it  is  not  necessary  to  consider  wdiat  constitutes  willful  malice  afore- 
thought to  bring  a  case  within  the  common-law  crime  of  fnurder, 
when  we  are  construing  this  statute,  which  says  that  whosoever  shall 
unlawfully  and  maliciously  commit  any  damage  to  or  upon  any  real 
or  personal  property  to  an  amount  exceeding  £5  shall  be  guilty  of  a 
misdemeanor.  A  person  may  be  said  to  act  maliciously  when  he  will- 
fully does  an  unlavvful  act  without  lawful  excuse.,  The  question  here 
is,  can  the  prismier^be  said,  when  he  not  only  threw  the  stone  unlaw- 
fully, but  broke  the  window  unintentionally,  to  have  unlawfully  and 
maliciously  broken  the  window?  I  think  that  there  was  evidence  on 
which  the  jury  might  have  found  that  he  unlawfully  and  maliciously 
broke  the  window,  if  they  had  found  that  the  prisoner  was  aware  that 
the  natural  and  probable  consequence  of  his  throwing  the  stone  was 
that  it  might  break  the  glass  window,  on  the  principle  that  a  man 
must  be  taken  to  intend  what  is  the  natural  and  probable  consequence 
of  his  acts.  But  the  jury  have  not  found  that  the  prisoner  threw 
the  stone,  knowing  that,  on  the  other  side  of  the  men  he  was  throw- 
ing at,  there  was  a  glass  window,  and  that  he  was  reckless  as  to 
whether  he  did  or  did  not  break  the  window.  On  the  contrary,  they 
have  found  that  he  did  not  intend  to  break  the  window.  I  think,  there- 
fore, that  the  conviction  must  be  quashed. 

PiGOTT,  B.     I  am  of  the  same  opinion. 

Lush,  J.  I  also  think  that  on  this  finding  of  the  jury  we  have  no 
alternative  but  to  hold  that  the  conviction  must  be  quashed.  The 
word  "maliciously"  means  an  act  done  either  actually  or  constructive- 
ly with  a  malicious  intention.  The  jury  might  have  found  that  he 
did  intend  actually  to  break  the  window  or  constructively  to  do  so,  as 
that  he  knew  that  the  stone  might  probably  break  it  when  he  threw  it. 
But  they  have  not  so  found. 

ClEasby,  B.,  concurred. 

Conviction  quashed. 


30  THE   MENTAL    ELEMENT   IN    CEIMB 


III.  Constructive  Intent " 


COMMONWEALTH  v.  ADAMS. 

(Supreme  Judicial  Court  of  Massacliusetts,  1S73.    114  Mass.  323, 

19  Am.  Rep.  362.) 

Complaint  for  assault  and  battery. 

At  the  trial  in  the  superior  court,  before  Bacon,  J.,  it  appeared 
that  the  defendant  was  driving  in  a  sleigh  down  Beacon  street,  and 
was  approaching  the  intersection  of  Charles  street,  when  a  team  oc- 
cupied the  crossing.  The  defendant  endeavored  to  pass  the  team 
while  driving  at  a  rate  prohibited  by  an  ordinance  of  the  city  of  Bos- 
ton. In  so  doing  he  ran  against  and  knocked  down  a  boy  who  was 
crossing  Beacon  street.  No  special  intent  on  the  part  of  the  defend- 
ant to  injure  the  boy  was  shown.  The  defendant  had  pleaded  guilty 
to  a  complaint  for  fast  driving,  in  violation  of  the  city  ordinance.  The 
commonwealth  asked  for  a  verdict,  upon  the  ground  that  the  intent 
to  violate  the  city  ordinance  supplied  the  intent  necessary  to  sustain 
the  charge  of  assault  and  battery.  The  court  so  ruled,  and  thereupon 
the  defendant  submitted  to  a  verdict  of  guilty,  and  the  judge,  at 
the  defendant's  request,  reported  the  case  for  the  determination  of 
this  court. 

EndicoTT,  J.  We  are  of  opinion  that  the  ruling  in  this  case  cannot 
be  sustained.  It  is  true  that  one  in  the  pursuit  of  an  unlawful  act 
may  sometimes  be  punished  for  another  act  done  without  design  and 
by  mistake,  if  the  act  done  was  one  for  which  he  could  have  been 
punished  if  done  willfully.  But  the  act,  to  be  unlawful  in  this  sense, 
must  be  an  act  bad  in  itself,  and  done  with  an  evil  intent;  and  the 
law  has  always  made  this  distinction:  That  if  the  act  the  party  was 
doing  was  merely  malum  prohibitum,  he  shall  not  be  punishable  for 
the  act  arising  from  misfortune  or  mistake ;  but  if  malum  in  se,  it 
is  otherwise.  1  Hale,  P.  C.  39;  Foster,  C.  L.  259.  Acts  mala  in  se 
include,  in  addition  to  felonies,  all  breaches  of  public  order,  injuries 
to  person  or  property,  outrages  upon  public  decency  or  good  morals, 
and  breaches  of  official  duty,  when  done  willfully  or  corruptly.  Acts 
mala  prohibita  include  any  matter  forbidden  or  commanded  by  stat- 
ute, but  not  otherwise  wrong.  3  Greenl.  Ev.  §  1.  It  is  within  the 
last  class  that  the  city  ordinance  of  Boston  falls,  prohibiting  driving 
more  than  six  miles  an  hour  in  the  streets. 

Besides,  to  prove  the  violation  of  such  an  ordinance,  it  is  not  neces- 

!■'  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law   (3d  Ed.)   §§ 
17,  IS. 


CONSTRUCTIVE    INTENT  ol 

sary  to  show  that  it  was  done  willfully  or  corruptly.  The  ordinance 
declares  a  certain  thing  to  be  illegal.  It  therefore  becomes  illegal 
to  do  it,  without  a  wrong  motive  charged  or  necessary  to  be  prov- 
ed; and  the  court  is  bound  to  administer  the  penalty,  although  there 
is  an  entire  want  of  design.  Rex  v.  Sainsbury,  4  T.  R.  451,  457.  It 
was  held  in  Commonwealth  v.  Worcester,  3  Pick.  462,  that  proof  only 
of  the  fact  that  the  party  was  driving  faster  than  the  ordinance  allowed 
was  suf^cient  for  conviction.  See  Commonwealth  v.  Farren,  9  Allen, 
489;  Commonwealth  v.  Waite,  11  Allen,  264,  87  Am.  Dec.  711.  It  is 
therefore  immaterial  whether  a  party  violates  the  ordinance  willfully 
or  not.  The  offense  consists,  not  in  the  intent  with  which  the  act  is 
done,  but  in  doing  the  act  prohibited,  but  not  otherwise  wrong.  It 
is  obvious,  therefore,  that  the  violation  of  the  ordinance  does  not  in 
itself  supply  the  intent  to  do  another  act  which  requires  a  criminal 
intent  to  be  proved.  The  learned  judge  erred  in  ruling  that  the  in- 
tent to  violate  the  ordinance  in  itself  supplied  the  intent  to  sustain 
the  charge  of  assault  and  battery.  The  verdict  must  therefore  be  set 
aside,  and  a  new  trial  granted. 


REGINA  V.  LATIMER. 
(Court  for  Crown  Cases  Reserved,  1SS6.    16  Cox,  C.  C.  70.) 

Case  stated  by  the  learned  Kecorder  for  the  borough  of  Devonport 
as  follows : 

The  prisoner  was  tried  at  the  April  Quarter  Sessions  for  the  bor- 
ough of  Devonport  on  the  10th  day  of  April,  1886. 

The  prisoner  was  indicted  for  unlawfully  and  rnaliciously  wound- 
ing Ellen  Rolston.  There  was  a  second  count  charging  him  with  a 
common  assault. 

The  evidence  showed  that  the  prosecutrix,  Ellen  Rolston,  kept  a 
public  house  in  Devonport;  that  on  Sunday,  the  14th  day  of  Febru- 
ary, 1886,  the  prisoner,  who  was  a  soldier,  and  a  man  named  Horace 
Chappie,  were  in  the  public  house,  and  a  quarrel  took  place,  and  eventu- 
ally the  prisoner  was  knocked  down  by  the  man,  Horace  Chappie. 
The  prisoner  subsequently  went  out  into  a  yard  at  the  back  of  the 
house.  In  about  five  minutes  the  prisoner  came  back  hastily  through 
the  room  in  which  Chappie  was  still  sitting,  having  in  his  hand  his  belt 
which  he  had  taken  off.  As  the  prisoner  passed  he  aimed  a  blow  with 
his  belt  at  the  said  Horace  Chappie,  and  struck  him  slightly.  The  belt 
bounded  off  and  struck  the  prosecutrix,  who  was  standing  talking  to 
the  said  Horace  Chappie,  in  the  face,  cutting  her  face  open  and  wound- 
ing her  severely. 

At  the  close  of  the  case  the  learned  Recorder  left  these  questions 
to  the  jury:    (1)  Was  tlie  blow  struck  at  Chappie  in  self-defense  to 


32  THE   MENTAL   ELEMENT   IN   CRIME 

<ret  through  the  room,  or  unlawfully  and  maliciously?  (2)  Did  the 
blow  so  struck  in  fact  wound  Ellen  Rolston?  (3)  Was  the  strikmg  of 
Ellen  Rolston  purely  accidental,  or  was  it  such  a  consequence  as  the 
prisoner  should  have  expected  to  follow  from  the  blow  he  aimed  at 

Chappie? 

The  jury  found:  (1)  That  the  blow  was  unlawful  and  malicious. 
(2)  That  the  blow  did  in  fact  wound  Ellen  Rolston.  (3)  That  the 
striking  of  Ellen  Rolston  was  purely  accidental,  and  not  such  a  con- 
sequence of  the  blow  as  the  prisoner  ought  to  have  expected. 

Upon  these  findings  the  learned  Recorder  directed  a  verdict  of  guilty 
to  be  entered  to  the  first  count,  but  respited  judgment,  and  admitted 
the  prisoner  to  bail,  to  come  up  for  judgment  at  the  next  sessions. 

The  question  for  the  consideration  of  the  court  was  whether,  upon 
the  facts  and  the  findings  of  the  jury,  the  prisoner  was  rightly  con- 
victed of  the  offense  for  which  he  was  indicted. 

By  St.  24  &  25  Vict.  c.  100,  §  20,  it  is  enacted  that : 

"Whosoever  shall  unlawfully  and  maliciously  wound  or  inflict  any 
grievous  bodily  harm  upon  any  other  person,  either  with  or  without 
any  weapon  or  instrument,  shall  be  guilty  of  misdemeanor." 

Croft,  for  the  prisoner.  The  findings  of  the  jury  amount  to  a  ver- 
dict of  not  guilty,  for,  though  they  found  that  the  blow  was  unlawful 
and  malicious,  and  did  in  fact  wound  the  prosecutrix,  they  negatived 
those  findings  by  the  finding  that  the  blow  was  accidental.  In  Reg.  v. 
Pembliton,  12  Cox,  C.  C.  607,  30  L.  T.  Rep.  (N.  S.)  405,  L.  R.  2  Cr. 
Cas.  Res.  119,  it  was  held  that  a  jury,  by  finding  that  a  stone  had  been 
thrown  by  the  prisoner,  intending,  to  strike  a  person  with  whom  he  had 
been  fighting,  and  not  intending  to  break  a  window  as  he  had  done, 
had  negatived  the  existence  of  malice,  either  actual  or  constructive, 
and  a  conviction  for  malicious  injury  to  property  was  upon  that  ground 
quashed.  [Manisty,  J.  Suppose  here  the  prisoner  had  killed  Ellen 
Rolston,  would  not  he  have  been  guilty  of  manslaughter?]  Yes;  but 
in  this  case  the  indictment  is  under  a  statute  which  requires  that  the 
blow  should  have  been  given  maliciously,  and  intention  to  wound  the 
particular  person  is  therefore  necessary.  [Lord  EshEr.  The  indict- 
ment does  not  charge  any  specific  intent.  It  charges  that  he  did  it  un- 
lawfully. He  was  doing  a  criminal  and  unlawful  act,  which  resulted 
in  a  wounding  of  Ellen  Rolston.  Was  not  that  an  unlawful  wound- 
ing?] No;  in  the  case  cited  the  words  in  the  statute  were  the  same, 
and  it  was  held  not  to  be  an  unlawful  injury.  [Fie^ld,  J.  There  the 
indictment  was  that  the  prisoner  unlawfully  and  maliciously  injured 
the  window  of  A.,  and  the  jury  found  that  he  intended  to  wound  B., 
and  no  doubt  the  court  would  hold  that  the  evidence  did  not  support 
the  indictment.]  In  Reg.  v.  Faulkner,  13  Cox,  C.  C.  550,  a  sailor  en- 
tered a  part  of  a  vessel  for  the  purpose  of  stealing  rum,  and  acciden- 
tally fired  the  vessel,  but  he  was  nevertheless  held  not  guilty  of  arson. 
[Manisty,  J.    In  that  case  there  was  no  evidence  at  all  of  malice.]     I 


CONSTRUCTIVE   INTENT  33 

submit  that  the  unlawfulness  of  the  act  was  sufficient  evidence  of  mal- 
ice there.  In  McPherson  v.  Daniels,  10  B.  &  C.  263,  2  M.  &  R.  251, 
"maliciously"  has  been  defined  as  the  doing-  a  wrongful  act  willfully. 
fLord  CoLERiDGiv,  C.  J.  Is  not  this  case  g-overned  by  the  decision  in 
Reg.  V.  Hunt,  1  Moo.  C.  C.  93  ?]  No ;  for  that  case  is  inconsistent  with 
the  later  case  of  Reg.  v.  Hewlett,  1  F.  &  F.  91,  where  it  was  held  that 
where  a  person  strikes  A.,  and  B.,  interposing,  receives  the  blow,  a 
conviction  for  wounding  B'.  with  intent  to  do  grievous  bodily  harm 
cannot  be  sustained.  I  submit  that  this  case  is  governed  by  the  deci- 
sion in  Reg.  v.  Pembliton,  and  that,  the  jury  having  negatived  the  ex- 
istence of  malice,  the  prisoner  is  entitled  to  an  acquittal. 

Helpman,  for  the  prosecution,  w^as  not  called  upon. 

Lord  Coleridge,  C.  J.*^  I  am  of  opinion  that  this  conviction  must 
be  sustained.  In  the  first  place,  it  is  common  knowledge  that  if  a  per- 
son has  a  malicious  intent  towards  one  person,  and  in  carrying  into 
effect  that  malicious  intent  he  injures  another  man,  he  is  guilty  of  what 
the  law  considers  malice  against  the  person  so  injured,  because  he  is 
guilty  of  general  malice,  and  is  guilty  if  the  result  of  his  unlawful  act 
be  to  injure  a  particular  person.  That  would  be  the  law  if  the  case 
were  res  integra ;  but  it  is  not  res  integra,  because  in  Reg.  v.  Hunt  a 
man,  in  attempting  to  injure  A.,  stabbed  the  wrong  man.  There,  in 
point  of  fact,  he  had  no  more  intention  of  injuring  B.  than  a  man  has 
an  intent  to  injure  a  particular  person  who  fires  down  a  street  where 
a  number  of  persons  are  collected,  and  injures  a  person  he  never  heard 
of  before..  But  he  had  an  intent  to  do  an  unlawful  act,  and  in  carry- 
ing out  that  intent  he  did  injure  a  person ;  and  the  law  says  that,  un- 
der such  circumstances  a  man  is  guilty  of  maliciously  wounding  the' 
person  actually  wounded.  That  would  be  the  ordinary  state  of  the  law 
if  it  had  not  been  for  the  case  of  Reg.  v.  Pembliton.  But  I  observe 
that,  in  such  an  indictment,  as  in  that  case,  the  words  of  the  statute 
carry  the  case  against  the  prisoner  more  clearly  still,  because,  by  St. 
24  &  25  Vict.  c.  100,  §  18,  it  is  enacted  that  "whosoever  shall  unlaw- 
fully and  maliciously  by  any  means  whatsoever  wound  *  *  =f=  any 
person  *  *  *  -^^ith  intent  *  *  *  to  maim,  disfigure,  or  dis- 
able any  person  *  *  *  shall  be  guilty  of  felony";  and  then  sec- 
tion 20  enacts  that  "whosoever  shall  unlawfully  and  maliciously  wound 
*  *  *  any  other  person  shall  be  guilty  of  a  misdemeanor,"  and  be 
liable  to  certain  punishments.  Therefore  the  language  of  the  eight- 
eenth and  twentieth  sections  are  perfectly  dififerent ;  and  it  must  be 
remembered  that  this  is  a  conviction  for  an  ofifense  under  the  twentieth 
section.  Now,  the  Master  of  the  Rolls  has  pointed  out  that  these  very 
sections  are  in  substitution  for  and  correction  of  the  earlier  statute  (St. 

6  The  opinions  of  Lord  Esher,  M.  R.,  Bowen,  L.  J.,  and  Field  and  Manisty, 
J  J.,  are  omitted. 

MiKELL  Cas.Ce.L. — ^3 


34  THE   MENTAL   ELEMENT   IN   CRIME 

9  Geo.  IV,  c.  31),  where  it  was  necessary  that  the  act  should  have  been 
done  with  intent  to  maim,  disfigure,  or  disable  such  person,  showing 
that  the  intent  must  have  been  to  injure  the  person  actually  injured. 
Those  words  are  left  out  in  the  later  statute,  and  the  words  are  "wound 
any  other  person."  I  cannot  see  that  there  could  be  any  question,  but 
for  the  case  of  Reg.  v.  Pembliton.  Now,  I  think  that  that  case'  was 
properly  decided,  but  upon  a  ground  which  renders  it  clearly  distin- 
guishable from  the  present  case ;  that  is  to  say,  the  statute  which  was 
under  discussion  in  Reg.  v.  Pembliton  makes  an  unlawful  injury  to 
property  punishable  in  a  certain  way.  In  that  case  the  jury  and  the 
facts  expressly  negatived  that  there  was  any  intent  to  injure  any  prop- 
erty at  all ;  and  the  court  held  that,  in  a  statute  which  created  it  an  of- 
fense to  injure  property,  there  must  be  an  intention  to  injure  property 
in  order  to  support  an  indictment  under  that  statute.  But  for  that  case 
Mr.  Croft  is  out  of  court,  and  I  therefore  think  that  this  conviction 
should  be  sustained. 


IV.  Intent  in  Cases  of  Negligence  ' 


STATE  V.  O'BRIEN. 

(Supreme  Court  of  New  Jersey,  1867.     32  N.  J.  Law,  169.) 

DalrimplE,  J.  On  the  15th  day  of  November,  1865,  the  defend- 
ant was  a  switch  tender  in  the  employ  of  the  New  Jersey  Railroad  & 
Transportation  Company.  His  duty  was  to  adjust,  and  keep  adjusted, 
the  switches  of  the  road  at  a  certain  point  in  the  city  of  Newark,  so 
that  passenger  trains  running  over  the  road  would  continue  on  the 
main  track  thereof,  and  pass  thence  to  the  city  of  Elizabeth.  He  failed 
to  perform  such  duty,  whereby  a  passenger  train  of  cars,  drawn  by  a 
locomotive  engine,  was  unavoidably  diverted  from  the  main  track  to 
a  side  track,  and  thence  thrown  upon  the  ground.  The  cars  were 
thrown  upon  each  other  with  great  force  and  violence,  by  means  where- 
of one  Henry  Gardner,  a  passenger  upon  the  train,  was  so  injured  that 
he  died.  The  defendant  was  indicted  for  manslaughter,  and  convicted 
upon  trial  in  the  Essex  oyer  and  terminer.  He  insisted,  and  in  difler- 
ent  forms  asked  the  court  to  charge  the  jury,  that  he  could  not  legally 
be  convicted  unless  his  will  concurred  in  his  omission  of  duty.  The 
court  refused  so  to  charge.  A  rule  to  show  cause  why  the  verdici 
should  not  be  set  aside  was  granted,  and  the  case  certified  into  this 

7  i''or  discussion  of  priuciples,  see  CliuU  on  Criminal  Law  (Sd  Ed.)  §  19. 


INTENT   IN   CASES   OF   NEGLIGENCE  35 

court  for  its  advisory  opinion,  as  to  whether  there  was  any  error  in  the 
charge  of  the  court  below,  or  in  the  refusal  to  charge  as  requested. 

The  indictment  was  for  the  crime  of  manslaughter.  If  the  defend- 
ant's omission  of  duty  was  willful,  or,  in  other  words,  if  his  will  con- 
curred "in  his  negligence,  he  was  guilty  of  murder.  Intent  to  take  life, 
whether  by  an  act  of  omission  or  commission,  distinguishes  murder 
from  manslaughter.  In  order  to  make  out  against  the  defendant  the 
lesser  offense  of  manslaughter,  it  was  not  necessary  that  it  should  ap- 
pear that  the  act  of  omission  was  willful  or  of  purpose.  The  court 
was  right  in  its  refusal  to  charge,  as  requested. 

The  only  other  question  is  whether  there  is  error  in  the  charge  de- 
livered. The  error  complained  of  is  that  the  jury  were  instructed  that 
a  mere  act  of  omission  might  be  so  criminal  or  culpable  as  to  be  the 
subject  of  an  indictment  for  manslaughter.  Such,  we  believe,  is  the 
prevailing  current  of  authority.  Prof.  Greenleaf,  in  the  third  volume 
of  his  work  on  Evidence  (section  129),  in  treating  of  homicide,  says: 
"It  may  be  laid  down  that,  where  one  by  his  negligence  has  contrib- 
uted to  the  death  of  another,  he  is  responsible.  The  caution  which  the 
law  requires  in  all  these  cases  is  not  the  utmost  degree  which  can  pos- 
sibly be  used,  but  such  reasonable  care  as  is  used  in  the  like  cases, 
and  has  been  found,  by  long  experience,  to  answer  the  end."  Whar- 
ton, in  his  Treatise  on  Criminal  Law  (page  382),  says:  "There  are 
many  cases  in  which  death  is  the  result  of  an  occurrence,  in  itself  un- 
expected, but  which  arose  from  negligence  or  inattention.  How  far 
in  such  cases  the  agent  of  such  misfortune  is  to  be  held  responsible 
depends  upon  the  inquiry  whether  he  was  guilty  of  gross  negligence 
at  the  time.  Inferences  of  guilt  are  not  to  be  drawn  from  remote 
causes,  and  the  degree  of  caution  requisite  to  bring  the  case  within 
the  limits  of  misadventure  must  be  proportioned  to  the  probability  of 
danger  attending  the  act  immediately  conducive  to  the  death."  The 
propositions,  so  well  stated  by  the  eminent  writers  referred  to,  we  be- 
lieve to  be  entirely  sound,  and  are  applicable  to  the  case  before  us. 
The  charge,  in  the  respect  complained  of,  was  in  accordance  with 
them.  It  expressly  states  that  it  was  a  question  of  fact,  for  the  jury 
to  settle,  whether  the  defendant  was  or  was  not  guilty  of  negligence ; 
whether  his  conduct  evinced  under  the  circumstances  such  care  and 
diligence  as  were  proportionate  to  the  danger  to  life  impending.  The 
very  definition  of  crime  is  an  act  omitted  or  committed  in  violation 
of  public  law.  The  defendant  in  this  case  omitted  his  duty  under  such 
circumstances  as  amounted  to  gross  or  culpable  or  criminal  negligence. 
The  court  charged  the  jury  that  if  the  defendant,  at  the  time  of  the  ac- 
cident, was  intending  to  do  his  duty,  but  in  a  moment  of  forget  ful- 
ness omitted  something  which  any  one  of  reasonable  care  would  be- 
likely  to  omit,  he  was  not  guilty.  The  verdict  of  guilty  finds  the  ques- 
tion, in  fact,  involved  in  this  proposition  against  the  defendant,  and 
convicts  him  of  gross  negligence.    He  owed  a  personal  duty  not  only 


36  THE    MENTAL   ELEMENT   IN   CRIME 

to  his  employers,  but  to  the  public.  He  was  found  to  have  been  grossly 
negligent  in  the  performance  of  that  duty,  whereby  human  life  was 
sacrificed.  His  conviction  was  right,  and  the  court  below  should  be 
so  advised. 


V.  Concurrence  of  Act  and  Intent  ' 


MILTON  V.  STATE. 
(Supreme  Court  of  Florida,  1S9S.    40  Fla.  251,  24  South.  60.) 

Mabry,  J.^  *  *  *  The  following  instruction  given  by  the  court 
to  the  jury  was  excepted  to  by  defendant,  viz. :  "U  you  believe  from 
all  the  testimony  in  this  case  that  the  defendant  was  informed  that  in 
a  certain  house  an  offense  was  being  committed  against  the  ordinances 
of  the  city  of  Tampa,  and  that  the  defendant  was  a  policeman  of  the 
city  of  Tampa  at  the  time,  then  it  was  his  duty,  and  it  was  lawful,  if 
not  resisted,  for  him  to  go  into  said  house  for  the  purpose  of  prevent- 
ing, or  arresting  those  who  might  in  his  presence  be  guilty  of  a  vio- 
lation of  the  ordinances  of  said  city;  but  if  you  believe  from  all  the 
evidence  in  this  case  that  he  went  to  that  house  in  good  faith  as  an 
officer  of  the  law  to  enforce  the  law,  and  after  he  got  in  there  violated 
the  law  himself,  then  the  law  removes  its  sanction  to  such  entry,  and 
he  becomes  a  trespasser  from  the  beginning."  This  charge  is  not 
correct,  and  we  find  no  authority  to  sustain  it.  The  circuit  judge  must 
have  failed  to  observe  the  distinction  obtaining  in  the  civil  and  crimi- 
nal departments  of  the  law  in  the  application  of  the  rule  sought  to  be 
invoked  in  the  charge.  Mr.  Bishop  says  (1  Crim.  Law  [8th  Ed.]  § 
208) :  "In  civil  jurisprudence  we  have  the  rule  that  when  a  man  does 
a  thing  by  permission  of  law — not  by  license,  but  by  permission  of 
law — and,  after  proceeding  lawfully  part  way,  abuses  the  liberty  the 
law  had  given  him,  he  shall  be  deemed  a  trespasser  from  the  beginning 
by  reason  of  this  subsequent  abuse.  But  this  doctrine  does  not  prevail 
in  our  criminal  jurisprudence;  for  no  man  is  punishable  criminally  for 
what  was  not  criminal  when  done,  even  though  he  afterwards  adds 
cither  the  act  or  the  intent,  yet  not  the  two  together."  The  cases  cited, 
State  V.  Moore,  12  N.  H.  42,  and  Commonwealth  v.  Tobin,  108  Mass. 
426,  11  Am.  Rep.  375,  sustain  the  text.     =<=     *     * 

The  judgment  is  reverset.1,  and  a  new  trial  awarded. 

8  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (Sd  Ed.)  §  20. 
» I'art  of  tlie  opinion  is  omitted. 


PERSONS   CRIMINALLY    RESPONSIBLE,    AND    EXEMPTIONS  37 


PERSONS  CAPABLE  OF  COMMITTING  CRIME,  AND 
EXEMPTION  FROM  RESPONSIBILITY 

I.  Infancy  ^ 


GODFREY  V.  STATE. 

(Supreme  Court  of  Alabama,  1858.    31  Ala.  323,  70  Am.  Dec.  494.) 

Walker,  J.^  The  single  point  to  be  considered  in  this  case  is 
whether  the  charge  of  the  court  beloAv  to  the  jury  was  correct.  An 
analysis  of  that  charge  shows  that  the  jury  were  strictly  instructed  that 
the  defendant,  being  between  seven  and  fourteen  years  of  age,  was 
prima  facie  incapable  of  committing  crime;  that,  to  overturn  the  in- 
tendment in  favor  of  his  incapacity  to  commit  crime,  the  jury  must 
be  convinced  from  the  evidence  beyond  a  reasonable  doubt,  after  al- 
lowing due  consideration  to  the  fact  that  the  accused  was  a  negro  and 
a  slave,  that  he  knew  fully  the  nature  of  the  act  done  and  its  conse- 
quences; and  that  he  showed  plainly  intelligent  design  and  malice  in 
the  execution  of  the  act.  This  charge,  after  an  anxious  and  careful 
examination  of  it,  we  cannot  pronounce  erroneous. 

An  infant,  above  seven,  but  under  fourteen,  years  of  age,  is  pre- 
sumed not  to  have  such  knowledge  and  discretion  as  would  make  him 
accountable  for  a  felony  committed  during  that  period.  But,  if  that 
presumption  is  met  by  evidence  clearly  proving  the  existence  of  that 
knowledge  and  discretion  deemed  requisite  to  a  legal  accountability, 
the  reason  for  allowing  an  immunity  from  punishment  ceases,  and 
with  it  the  rule  which. grants  such  immunity  ceases.  There  are  many 
cases  where  children  between  those  ages,  being  shown  to  have  been 
cognizant  of  the  criminal  nature  of  the  act  done,  have  been  punished 
under  the  criminal  law.  A  girl,  thirteen  years  of  age,  was  executed 
for  killing  her  mistress.  Two  boys,  one  nine,  and  the  other  ten  years 
of  age,  were  convicted  of  murder,  because  one  of  them  hid  himself, 
and  the  other  hid  the  dead  body,  thus  manifesting  as  was  supposed, 
a  consciousness  of  guilt  and  a  discretion  to  discern  between  good  and 
evil.  A  boy  of  eight  years  of  age,  who  had  malice,  revenge,  and  cun- 
ning, was  hanged  for  firing  two  barns.     A  boy  ten  years  old,  who 

1  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)   §§ 
21,  22. 

2 'me  statement  of  facts  is  omitted. 


38  PERSONS   CRIMINALLY   RESPONSIBLE,    AND    EXEMPTIONS 

showed  a  mischievous  discretion,  was  convicted  of  murdering-  his  bed- 
fellow.   4  Bl.  Com.  23,  24. 

In  the  case  of  Rex  v.  Owen,  2  Car.  &  P.  236,  it  was  referred  to  the 
jury  to  determine  whether  the  act  of  a  girl  ten  years  old,  alleged  to 
constitute  a  larceny,  was  known  by  her  to  be  wrong  when  it  was  done ; 
and  upon  that  question  she  was  acquitted.  It  is  said  in  Hale's  Pleas 
of  the  Crown,  p.  22,  that  one  between  the  ages  of  seven  and  fourteen 
might  be  convicted  of  a  capital  offense,  "if  it  appeared  by  strong  and 
pregnant  evidence  and  circumstances  that  he  was  perfectly  conscious 
of  the  nature  and  malignity  of  the  crime."  In  an  American  case  the 
same  principle  is  thus  stated :  "If  it  shall  appear  by  strong  and  irre- 
sistible evidence  that  he  had  sufficient  discernment  to  distinguish  good 
from  evil,  to  comprehend  the  nature  and  consequences  of  his  acts, 
he  may  be  convicted,  and  have  judgment  of  death."  State  v.  Aaron, 
4  N.  J.  Law,  231,  7  Am.  Dec.  592.  In  that  case  a  negro  boy,  who  was 
a  slave,  of  eleven  years,  was  convicted  of  murder;  but  a  new  trial 
was  granted  on  account  of  an  erroneous  ruling  as  to  the  competency 
of  a  witness,  and  it  does  not  appear  what  farther  was  done  in  the  case. 

In  the  case  of  State  v.  Guild,  10  N.  J.  Law,  163,  18  Am.  Dec.  404, 
a  negro  slave,  of  less  than  twelve  years,  was  convicted  of  murder;  and 
the  report  of  the  case  informs  us  that  the  defendant  was  executed. 
In  that  case  the  court  dissenting  from  the  cautious  statement  of  the 
law  found  in  1  Hale's  Pleas  of  the  Crown,  p.  27,  permitted  a  convic- 
tion upon  confessions.  In  this  case,  although  a  confession  was  given 
in  evidence,  the  facts  proved  established  the  guilt  of  the  accused  so 
clearly  that  it  is  fairly  inferable  that  no  importance  was  attached  to 
it  by  the  court  or  jury,  and  its  effect  is  not  noticed  in  the  charge.  The 
question  whether  a  conviction  could  be  had  upon  confessions  does  not 
arise,  and  we  do  not  commit  ourselves  to  the  doctrine  of  the  decision 
last  above  cited  upon  that  point. 

All  the  authorities  concur  in  maintaining  the  correctness  of  the 
propositions  of  law  involved  in  the  charge.  Bishop  on  Criminal  Law, 
§§  283,  284,  285 ;  1  Archbold's  Crim.  PI.  3,  4,  5,  and  notes ;  1.  Russell 
on  Crimes,  3,  4,  5;  Roscoe's  Crim.  Ev.  942,  944;  Wharton's  Am. 
Crim.  Law,  51;  1  Wheeler's  Crim.  Cases,  231-234.  Reason,  human- 
ity, and  the  law  alike  required  that  the  court  should,  in  its  charge, 
throw  around  the  jury  every  guard  and  restriction  necessary  to  pre- 
vent an  improper  conviction  in  such  a  case.  This  has  been  carefully 
done  by  the  court  in  this  case,  and  we  are  bound  to  pronounce  a  full 
approval  of  the  charge. 

The  judgment  of  the  city  court  is  affirmed,  and  its  sentence  must  be 
executed. 


INSANITY  39 


II.  Insanity  '  » 


STATE  V.  KNIGHT. 

(Supreme  Judicial  Court  of  Maine,  1901.    95  Me.  467,  50  Atl.  270, 

55  L.  R.  A.  373.) 

WhiTe;house;,  J.  In  this  case  the  respondent  was  indicted  and 
tried  for  the  murder  of  Mamie  Small.  It  was  not  in  controversy  that 
the  accused,  if  responsible  for  his  act,  was  guilty  of  murder  in  the 
first  degree;  and  the  only  issue  raised  in  defense  was  the  insanity  of 
the  defendant.  The  jury  returned  a  verdict  of  "guilty  of  murder  in 
the  first  degree,"  and  the  case  comes  to  this  court  on  exceptions  taken 
by  the  defendant  to  the  refusal  of  the  presiding  justice  to  give  certain 
instructions,  and  to  the  instructions  actually  given.     *     *     * 

It  is  not  in  controversy  that  the  instructions  actually  given  to  the 
jury  were  in  entire  harmony  with  the  intellectual  test  of  criminal 
responsibility  approved  in  State  v.  Lawrence,  57  Me.  574,  and  cases 
there  cited,  and  that  the  refusal  to  give  the  requested  instructions  was 
fully  justified  by  the  doctrine  of  that  case.  But  it  is  earnestly  con- 
tended by  the  learned  counsel  for  the  defendant  that  an  uncontrollable 
insane  impulse  to  commit  a  criminal  act  may  coexist  with  full  knowl- 
edge of  the  wrongfulness  of  the  act,  and  that  the  legal  test  of  respon- 
sibility for  crime,  afiforded  by  the  knowledge  of  right  and  wrong  re- 
specting the  act  committed,  has  proved  to  be  insufficient  and  unsat- 
isfactory. It  is  accordingly  insisted  that  tfie  time  has  now  arrived 
when  this  criterion  of  responsibility  can  be  safely  modified  by  incor- 
porating into  the  rule  the  element  of  irresistible  impulse  presented  in 
the  defendant's  requests. 

It  is  undoubtedly  true  that  in  the  progressive  development  of  the 
medical  jurisprudence  of  insanity  more  enlightened  views  have  grad- 
ually prevailed  respecting  the  functional  activity  of  the  mind,  and  the 
course  of  symptoms  indicating  mental  disease,  and  that  just  conclu- 
sions have  more  frequently  been  reached  by  courts  and  juries  in 
recent  years  in  regard  to  the  relation  of  insanity  to  criminal  respon- 
sibility. But  since  the  announcement  of  the  decision  by  this  court 
in  State  v.  Lawrence,  supra,  in  the  year  1870,  this  abstruse  and  diffi- 
cult question  has  been  the  subject  of  exhaustive  re-examination  and 
renewed  study,   in   the  light  of   all   modern  discoveries   of   scientific 

3  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law   (3d   Ed.)   §§ 


40  PERSONS   CKIMINALLY   RESPONSIBLE,    AND   EXEMPTIONS 

truth  bearing  upon  it  by  the  most  eminent  medical  and  legal  jurists 
in  this  country  and  England,  and  by  courts  of  the  highest  authority 
in  both  countries;  and  it'is  still  held  by  an  overwhelming  weight  of 
judicial  authority  that,  when  the  insanity  of  the  accused  is  pleaded 
in  defense,  the  test  of  his  responsibility  for  crime  afforded  by  his 
capacity  to  understand  the  nature  and  quality  of  the  act  he  was  doing, 
and  his  mental  power  to  distinguish  between  right  and  wrong  with 
respect  to  that  particular  act  at  the  time  he  committed  it,  is  the  only 
proper  legal  criterion,  and  that  when  fully  developed  and  explained 
to  the  jury,  in  its  application  to  the  special  facts  and  circumstances 
of  different  cases,  it  will  always  be  found  adequate  to  meet  the  de- 
mands of  justice  and  humanity  towards  the  accused,  as  well  as  to  in- 
sure the  protection  and  safety  of  the  public. 

In  Browne's  Medical  Jurisprudence  of  Insanity,  published  in  Eng- 
land in  1875  and  republished  in  this  country,  the  author  critically 
analyzes  the  famous  answers  given  by  the  English-  judges  to  the 
questions  proposed  to  them  by  the  House  of  Lords  after  the  trial  of 
McNaghten  in  1843  (sections  10-14),  which  have  formed  the  basis 
of  the  prevailing  rule  since  that  time,  and  the  one  approved  in  State 
v.  Lawrence,  supra,  and  then  proceeds  as  follows  (section  15):  "After 
the  fullest  examination  of  the  medical  opinions  on  the  other  side,  we 
are  constrained  to  hold  that  the  answers  of  the  judges  are  a  most 
satisfactory  statement  of  the  law,  and  that  no  better  test  of  res'pon- 
sibility  could,  at  the  present  time,  be  devised  than  that  which  makes 
knowledge  of  right  and  wrong  at  the  time  of  the  commission  of  the 
act  the  means  of  judging  of  the  punishability  of  the  person  who  has 
committed  a  criminal  ofl'ense.  'Although  not  a  test  of  insanity,'  says 
Dr.  Hammond,  'the  knowledge  of  right  and  wrong  is  a  test  of  respon- 
sibility. *  *  *  Any  individual  having  the  capacity  to  know  that 
an  act  which  he  contemplates  is  contrary  to  law  should  be  deemed 
legally  responsible  and  should  suffer  punishment.  He  possesses  what 
is  called  by  Bain  punishability.  *  *  *  fhe  only  forms  of  insanity 
which  in  my  opinion  should  absolve  from  responsibility  *  *  * 
are  such  a  degree  of  idiocy,  dementia,  or  mania  as  prevents  the  in- 
dividual from  understanding  the  consequences  of  his  act,  and  the 
existence  of  a  delusion  in  regard  to  a  matter  of  fact  which,  if  true, 
would  justify  his  act.'  " 

In  the  elaborate  work  on  Medical  Jurisprudence  by  Witthaus  & 
Becker,  published  in  New  York  in  1896,  is  a  treatise  on  the  Medical 
Aspects  of  Insanity  in  Its  Relations  to  Medical  Jurisprudence,  by 
Dr.  Fisher  of  New  York.  In  that  portion  of  the  treatise  devoted  to 
Impulsive  Insanity  the  author  says  (volume  3,  p.  273) ;     *     *     * 

"All  forms  of  crime  may  be  committed  under  the  influence  of  ir- 
resistible impulse — homicide,  suicide,  arson,  theft,  and  various  acts 
indicative  of  sexual  perversion.     We  may  also  have  melancholia  or 


INSANITY  41 

mania  associated  with  this  condition,  and  more  rarely  delusions  and 
hallucinations.  It  is  not,  however,  in  these  latter  conditions  that  we 
should  consider  this  disease  as  an  entity.  In  fact,  the  only  safe  course 
is  to  follow  the  dictum  of  the  law  in  this  respect,  which  virtually  says 
that  irresistible  impulse  is  no  defense  unless  a  symptom  of  insanity." 

Again,  in  the  treatise  on  Mental  Unsoundness  in  Its  Legal  Relation, 
in  the  same  volume,  by  Mr.  Becker,  the  author  says,  on  pages  421, 
422:  "But  evidence  of  the  loss  of  control  of  the  will,  or  of  morbid 
impulse,  does  not  constitute  a  defense,  except  when  it  demonstrates 
mental  unsoundness  of  such  a  character  as  to  destroy  the  power  of 
distinguishing  right  and  wrong  as  to  the  particular  act.  *  *  * 
This  rule  is  the  legal  essence  of  the  whole  matter,  and  it  avoids  much 
of  the  confusion  which  the  German  jurists  and  metaphysicians  have 
infused  into  this  subject."     *     *     * 

In  the  Medical  Jurisprudence  of  Insanity  or  Forensic  Psychiatry, 
by  Dr.  S.  V.  Clevenger,  of  Chicago,  published  in  1898,  the  author 
concedes  that  the  test  of  right  and  wrong  as  to  the  particular  act 
charged  is  generally  accepted  in  the  United  States  in  determining  the 
question  of  responsibility  for  crime  (volume  2,  p.  18),  and  abundantly 
justifies  the  concession  by  a  vast  array  of  "Legal  Adjudications  in 
Criminal  Cases"  cited  in  chapter  7  of  the  same  volume.     *     *     * 

In  a  very  elaborate  discussion  of  the  subject  by  the  Supreme  Court 
of  Appeals  in  State  v.  Harrison,  36  W.  Va.  729,  15  S.  E.  982,  18  L. 
R.  A.  224  (1892),  the  authorities  are  critically  examined  and  com- 
pared, and  the  doctrine  of  "irresistible  impulse"  emphatically  repudiat- 
ed. In  the  opinion  it  is  said :  "For  myself,  I  cannot  see  how  a  person 
who  rationally  comprehends  the  nature  and  quality  of  an  act,  and 
knows  that  it  is  wrong  and  criminal,  can  act  through  irresistible  in- 
nocent impulse.  Knowing  the  nature  of  the  act  well  enough  to  make 
him  otherwise  liable  for  it  under  the  law,  can  we  say  that  he  acts  from 
irresistible  impulse,  and  not  criminal  design  and  guilt?  *  *  *  j 
admit  the  existence  of  irresistible  impulse,  and  its  efficacy  to  ex- 
onerate from  responsibility,  but  not  as  consistent  with  an  adequate 
realization  of  the  wrong  of  the  act.  It  is  that  uncontrollable  impulse 
produced  by  the  disease  of  the  mind,  when  that  disease  is  sufficient 
to  override  the  reason  and  judgment,  and  obliterate  the  sense  of 
right  as  to  the  act  done,  and  deprive  the  accused  of  the  power  to 
choose  between  them.  This  impluse  is  born  of  the  disease,  and,  when 
it  exists,  capacity  to  know  the  nature  of  the  act  is  gone.  This  is  the 
sense  in  which  'irresistible  impulse"  was  defined  in  Hopps  v.  People, 
31  111.  385,  83  Am.  Dec.  231,  and  Dacey  v.  People,  116  111.  556,  6 
N.  E.  165."  See,  also.  State  v.  Felter,  25  Iowa,  67 ;  State  v.  Mewher- 
ter,  46  Iowa,  88;  State  v.  Nixon,  32  Kan.  205,  4  Pac.  159;  Ortwein 
v.  Commonwealth,  76  Pa.  414,  18  Am.  Rep.  420;  People  v.  Hoin,  62 
Cal.  120,  45  Am.  Rep.  651 ;  Guiteau's  Case  (D.  C.)  10  Fed.  195.    *    *    * 


42  PERSONS   CRIMINALLY    RESPONSIBLE,    AND    EXEMPTIONS 

It  is  evident  that  much  of  the  diversity  of  opinion  or  difference  in 
modes  of  expression  upon  this  subject  arises  from  a  failure  to  dis- 
criminate between  that  "irresistible  impulse"  produced  by  an  insane 
delusion  or  mental  disease  which  has  progressed  to  the  extent  of  de- 
throning the  reason  and  judgment  and  destroying  the  power  of  the 
accused  to  distinguish  between  right  and  wrong  as  to  the  act  he  is 
committing,  and  that  uncontrollable  impulse  which  is  alleged  to  arise 
from  mental  disease  and  to  coexist  with  the  capacity  to  comprehend 
the  nature  and  wrongfulness  of  the  act,  but  which  may  with  equal 
reason  and  consistency  be  attributable  to  moral  depravity  and  crim- 
inal perversity. 

In  the  case  at  bar  it  has  been  seen  that  the  defendant's  requests  do 
not  assume  the  existence  of  an  insane  delusion  or  any  mental  disease 
sufficient  to  override  his  reason  and  judgment,  obliterate  his  sense  of 
right  and  wrong,  and  deprive  him  of  the  power  to  choose  between 
them.  On  the  contrary,  they  presuppose  "sufficient  mental  capacity 
and  reason  to  enable  him  to  distinguish  between  right  and  wrong  as 
to  the  particular  act,"  and  still  declare  him  irresponsible  if,  by  reason 
of  mental  disease,  he  did  not  have  "sufficient^  will  power  to  refrain 
from  committing  the  act." 

It  is  contended,  in  behalf  of  the  state,  that  the  requests  present  a 
contradictory  and  impossible  state  of  mind,  in  thus  assuming  that  the 
accused  may  have  no  insane  delusions  as  to  the  act  he  is  committing, 
and  have  full  capacity  and  mental  power  to  comprehend  the  nature 
and  consequences  of  the  act,  to  know  that  it  was  unlawful  and  wrong 
and  would  subject  him  to  punishment,  and  yet  have  no  power  to  re- 
frain from  committing  it.  But,  whatever  may  eventually  be  declared 
by  the  great  body  of  medical  jurists  to  be  the  psychological  truth  in 
regard  to  the  coexistence  of  uncontrollable  impulse  and  such  full  ca- 
pacity to  distinguish  right  from  wrong  in  regard  to  the  act  in  question, 
at  present,  without  clear  and  conclusive  proof  that  such  a  state  of  mind 
may  exist,  and  in  the  absence  of  any  satisfactory  test  for  the  discov- 
ery of  its  existence  that  would  be  universally  applicable  in  the  practi- 
cable administration  of  the  criminal  law,  this  court  must  adhere  to  the 
rule  approved  in  State  v.  Lawrence,  supra,  which  as  construed  and 
applied  in  this  state,  has  proved  to  be  an  adequate  and  satisfactory 
criterion  for  determining  the  punishability  of  the  accused  when  a  plea 
of  insanity  is  interposed  in  defense.     *     *     * 

Exceptions  overruled.    Judgment  for  the  state. 


INSANITY  43 


STATE  V.  JONES. 

(Supreme  Judicial  Court  of  Now  Hampshire,  1S71.    50  N.  IT.  3G9, 

9  Am.  Rep.  242.) 

Indictment  against  Hiram  Jones  for  the  murder  of  his  wife.  The 
defendant  was  found  guilty  of  murder  in  the  first  degree.     *     *     * 

Ladd,  J.*  *  *  *  "Yhe  remaining  and  most  important  questions 
in  the  case  arise  upon  the  instructions  given  by  the  court  to  the  jury, 
and  the  refusal  to  give  instructions  requested  by  defendant's  counsel. 

When,  as  in  this  case,  a  person  charged  with  crime  admits  the  act, 
but  sets  up  the  defense  of  insanity,  the  real  ultimate  question  to  be 
determined  seems  to  be  whether,  at  the  time  of  the  act,  he  had  the 
mental  capacity  to  entertain  a  criminal  intent — whether,  in  point  of 
fact,  he  did  entertain  such  intent. 

In  solving  that  problem,  as  in  all  other  cases,  it  is  for  the  court  to 
find  the  law,  and  for  the  jury  to  find  the  fact.  The  main  question 
for  our  consideration  here  is,  what  part  of  this  difficult  inquiry  is 
law,  and  what  part  fact? 

It  will  be  readily  agreed,  as  said  by  Shaw,  C.  J.,  in  Commonwealth 
v.  Rogers,  7  Mete.  (Mass.)  500,  41  Am.  Dec.  458,  that  if  the  reason 
and  mental  powers  of  the  accused  are  either  so  deficient  that  he  has 
no  will,  no  conscience,  or  controlling  mental  power,  or  if,  through  the 
overwhelming  violence  of  mental  disease,  his  intellectual  power  is  for 
the  time  obliterated,  he  is  not  a  responsible  agent,  and,  of  course,  is 
not  punishable  for  acts  which  otherwise  would  be  criminal. 

But  experience  and  observation  show  that,  in  most  of  the  cases 
which  come  before  the  courts,  where  it  is  sufficiently  apparent  that 
disease  has  attacked  the  mind  in  some  form  and  to  some  extent,  it 
has  not  thus  wholly  obliterated  the  will,  the  conscience,  and  mental 
power,  but  has  left  its  victim  still  in  possession  of  some  degree  of 
ability  in  some  or  all  these  qualities.  It  may  destroy,  or  it  may  only 
impair  and  becloud,  the  whole  mind ;  or  it  may  destroy,  or  only  im- 
pair, the  functions  of  one  or  more  faculties  of  the  mind.  There  seem 
to  be  cases  where,  as  Erskine  said  in  Hadfield's  Case,  reason  is  not 
driven  from  her  seat,  but  where  distraction  sits  down  upon  it  along 
with  her,  holds  her  trembling  upon  it,  and  frightens  her  from  her 
propriety. 

The  term  "partial  insanity"  has  been  applied  to  such  cases  by  writ- 
ers and  judges,  from  Lord  Hale  to  Chief  Justice  Shaw,  where,  as 
has  been  said,  "the  mind  may  be  clouded  and  weakened,  but  not  in- 
capable of  remembering,  reasoning,  and  judging" ;  and  it  is  here  that 
the  difficulty  of  the  subject  begins,  and  that  confusion  and  contradic- 

*  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


/ 


44  PERSONS   CRIMINALLY   RESPONSIBLE,    AND    EXEMPTIONS 

tion  in  the  authorities  make  their  appearance.  "No  one  can  say  where 
twilight  ends  or  begins,  but  there  is  ample  distinction  between  night 
and  day."  We  are  to  inquire  whether  a  universal  test  has  been  found 
wherewith  to  determine,  in  all  cases,  the  line  between  criminal  ac- 
countability and  nonaccountability — between  the  region  of  crime  and 
innocence — in  those  cases  which  lie  neither  wholly  in  the  darkness  of 
night  nor  the  light  of  day.  If  such  a  test  exists,  or  if  one  can  be 
found,  it  is  of  the  utmost  importance  that  it  be  clearly  defined  and 
broadly  laid  down,  so  that  when'  it  is  given  to  a  jury  it  may  aid,  rather 
than  confuse,  them.  To  ascertain  whether  a  rule  has  hitherto  been 
found,  we  must  look  to  the  authorities ;  and  so  far  as  we  have  been 
able  to  examine  them  the  leading  and  familiar  English  cases  and 
authorities  are  substantially  as  follows:  [The  learned  judge  here  re- 
viewed the  English  authorities  previous  to  McNaghten's  Case,  and  pro- 
ceeded.] 

The  numerical  preponderance  of  authority  in  England,  as  gathered 
from  the  cases  thus  far,  would  seem  to'  be  decidedly  in  favor  of  the 
rule  that  knowledge  of  right  and  wrong,  without  reference  to  the 
particular  act,  is  the  test,  although  their  force  is  much  shaken,  if  not 
wholly  overthrown,  by  the  qualifications  which  judges  have  seemed 
to  feel  at  liberty  to  introduce,  to  meet  their  individual  views  or  the 
exigencies  of  particular  cases,  and  especially  by  the  charge  of  Lord 
Denman  in  Regina  v.  Oxford.     *     *     * 

The  very  first  step  in  the  inquiry  to  ascertain  if  there  be  any  test 
or  criterion  that  may  be  safely  given  to  the  jury  on  this  subject  wheth- 
er as  a  fact  universally  true  or  as  a  principle  of  law,  involves  the 
examination  of  an  immense  mass  of  evidence  as  complicated  and  dif- 
ficult to  understand  as  can  well  be  conceived.  Moreover,  it  would 
require  a  degree  of  skill  and  scientific  attainment  which  could  only 
be  reached  by  years  of  special  study  and  intelligent  observation.  Not 
only  ought  all  the  facts  bearing  on  the  question  to  be  collected  from 
every  asylum  for  the  insane  throughout  the  world,  but,  as  an  inflexi- 
ble rule  is  to  be  established,  the  facts  of  all  other  cases  where  the 
patient  has  never  received  scientific  treatment  ought  to  be  added  to 
the  stock.  Then,  after  collecting  the  facts  in  this  way,  it  would  be 
necessary  to  compare  cases  and  classes  of  cases  one  with  the  other, 
to  weigh  facts  against  facts,  to  balance  theories  and  opinions,  and 
finally  to  deduce  a  result  which  might  itself  turn  out  to  be  nothing 
more  than  a  theory  or  opinion  after  all.  At  any  rate,  it  would  be  a 
deduction  of  fact. 

It  need  not  be  said  that  this  is  not  the  business  of  a  court  of  law. 
It  is  a  work  which  can  only  be  reasonably  well  done  by  men  who  de- 
vote their  lives  exclusively  to  its  accomplishment.  Such  a  work  has 
doubtless  been  done,  with  extraordinary  patience  and  ability,  by  our 
distinguished  countryman.  Dr.  Ray;  and  the  result  of  his  laborious 
investigation  is  that  no  test  can  be  found.     He  says :    "To  persons 


INSANITY  4j 

practically  acquainted  with  the  insane  mind,  it  is  well  known  that  in 
every  hospital  for  the  insane  are  patients  capable  of  distinguishing  be- 
tween right  and  wrong,  knowing  well  enough  how  to  appreciate  the 
nature  and  legal  consequences  of  their  acts,  acknowledging  the  sanc- 
tions of  religion,  and  never  acting  from  irresistible  impulse,  but  de- 
liberately and  shrewdly."     Ray's  Aled.  Jurisp.  Ins.  §  43. 

If  we  were  at  liberty  to  weigh  and  consider  evidence  upon  the  ques- 
tion, it  is  clear  that  such  testimony  must  outweigh  all  the  convenient 
formulas  and  arbitrary  dogmas  laid  down  by  lawyers  and  judges  from 
the  time  of  Lord  Hale  to  the  present,  simply  for  the  reason  that  Dr. 
Ray  is  qualified  by  study  and  observation  to  give  an  opinion,  while 
lawyers  and  judges  are  not.  But  we  do  not  consider  evidence  upon 
this  point  at  all.  Whether  there  is  any  universal  test  is  as  clearly  a 
pure  matter  of  fact,  as  is  the  question  what  that  test  may  be.     *     *     * 

In  view  of  these  considerations,  we  are  led  to  the  conclusion  that 
the  instruction  given  to  the  jury  in  this  case,  that  "if  the  defendant 
killed  his  wife  in  a  manner  that  would  be  criminal  and  unlawful  if 
the  defendant  were  sane,  the  verdict  should  be  'not  guilty  by  reason 
of  insanity,'  if  the  killing  was  the  offspring  or  product  of  mental  dis- 
ease in  the  defendant,"  was  right ;  that  it  fully  covers  the  only  gen- 
eral, universal  element  of  law  involved  in  the  inquiry ;  and,  therefore, 
that  any  further  step  in  the  direction  indicated  by  the  requests  would 
have  been  an  interference  with  the  province  af  the  jury,  and  the  enun- 
ciation of  a  proposition  which  in  its  essence  is  not  law,  and  which 
could  not  in  any  view  safely  be  given  to  the  jury  as  a  rule  for  their 
guidance,  because,  for  aught  we  can  know,  it  might  have  been  false 
in  fact. 

This  would  seem  to  dispose  of  the  whole  case.  All  the  other  in- 
structions given  are  only  the  direct  logical  consequence  of  this  prin- 
ciple. 

Whether  the  defendant  had  a  mental  disease,  as  before  remarked, 
seems  to  be  as  much  a  question  of  fact  as  whether  he  had  a  bodily 
disease;  and  whether  the  killing  of  his  wife  was  the  product  of  that 
disease  was  also  as  clearly  a  matter  of  fact  as  whether  thirst  and  a 
quickened  pulse  are  the  product  of  fever.  That  it  is  a  difficult  ques- 
tion does  not  change  the  matter  at  all.  The  difficulty  is  intrinsic,  and 
must  be  met  from  whatever  direction  it  may  be  approached.  Enough 
has  already  been  said  as  to  the  use  of  symptoms,  phases,  or  manifes- 
tations of  the  disease  as  legal  tests  of  capacity  to  entertain  a  criminal 
intent.  They  are  all  clearly  matters  of  evidence,  to  be  weighed  by 
the  jury  upon  the  question  whether  the  act  was  the  offspring  of  in- 
sanity. If  it  was,  a  criminal  intent  did  not  produce  it.  If  it  was  not, 
a  criminal  intent  did  produce  it,  and  it  was  crime. 

The  instructions  as  to  insane  impulse  seem  to  be  quite  correct,  and 
entirely  within  the  same  principle.  If  the  defendant  had  an  insane 
impulse  to  kill  his  wife,  which  he  could  not  control,  then  mental  dis- 


4U  PERSONS   CRIMINALLY    RESPONSIBLE,    AND    EXEMPTIONS 

ease  produced  the  act.     If  he  could  have  controlled  it,  then  his  will 
must  have  assented  to  the  act,  and  it  was  not  caused  by  disease,  but 
by  the  concurrence  of  his  will,  and  was  therefore  crime.     *     *     * 
Exceptions  overruled. 


III.  Drunkenness  " 


STATE  V.  HAAB. 
(Supreme  Court  of  Louisiana,  1901.    105  La.  230,  29  South.  725.) 

NiCHOLLS,  C.  J.^  In  this  case,  defendant,  Fred.  H.  Haab,  indicted 
for  murder,  convicted  of  manslaughter,  and  sentenced  to  imprison- 
ment for  six  years  at  hard  labor  in  the  penitentiary,  has  appealed  from 
the  sentence  rendered,  upon  a  number  of  grounds  embodied  in  bills 
of  exception  and  assignment  of  error,  which  we  have  examined  with 
great  care.     *     *     * 

We  think  that  the  evidence  disclosed  that  for  some  time  previous  to 
the  homicide,  at  the  time  of  the  homicide,  and  up  to  the  time  of  his 
arrest,  the  accused  had  been  continually  drinking  heavily  and  getting 
drunk ;  that  he  was  drunk  at  the  time  of  the  homicide.  It  is  claimed 
for  the  defense  that  during  this  whole  period  the  condition  of  his  mind 
was  such  as  to  render  him  unable  to  distinguish  right  from  wrong,  and 
that  his  long  continuance  in-  excessive  drinking  had  brought  him  into 
such  a  condition  that  he  was  unable  to  resist  drinking  and  getting 
drunk;  that  his  condition  of  mind  was  such  as  to  give  rise  to  delu- 
sions on  his  part  that  he  was  about  to  be  attacked  and  killed. 

It  is  claimed  that  during  this  long  debauch  he  had  delirium  tremens, 
also  at  some  time  prior  to  the  homicide.  It  is  claimed  that  there  was 
evidence  to  show  that  he  was  in  fact  crazy  or  insane  at  the  time  of  the 
homicide,  and  that,  though  this  was  the  result  of  heavy  drinking,  the 
accused  was,  nevertheless,  excusable  for  the  homicide.     *     *     * 

In  his  reasons  for  refusing  a  new  trial  the  judge  said: 

"The  accused  began  drinking  immoderately,  and  was  under  the  in- 
fluence of  liquor  to  a  greater  or  less  degree  continually  and  without 
intermission  for  two  weeks  before  the  homicide,  until  its  effects  wore 
off,  after  his  arrest  and  incarceration,  when  he  ceased  drinking.  It 
makes  no  difference  by  what  terms  you  designate  the  temporary  ef- 
fects of  his   excesses,   whether  called   an    ordinary  drunk,   drunk  to 

5  For  a  discussion  of  principles,  see  Clarli  on  Criminal  Law  (3d  Ed.)  §§ 
28.  29. 

u  I'art  of  tbe  opiuiuu  is  omitted. 


DRUNKENNESS  4  4 

Stupefaction,  delirium  tremens,  drunk  to  frenzy,  insanity,  etc.,  if  it 
were  the  immediate  product  of  this  particular  debauch,  he  is  responsi- 
ble for  his  acts  under  its  influence.  There  was  no  evidence  whatever 
that  Haab's  condition  was  a  remote  consequence  of  long-continued 
prior  excesses,  nor  that  he  had  ever  been  in  this  condition  before. 
In  the  opinion  of  the  court,  at  the  time  of  the  firing  of  the  fatal  shot 
Haab  was  not  suffering  from  delirium  tremens.  He  was  merely  af- 
flicted with  that  nervousness  that  always  accompanies  immoderate  in- 
dulgence in  liquor." 

We  have  referred  to  United  States  v.  Drew,  cited  by  counsel,  and 
reported  in  5  Mason,  29,  Fed.  Cas.  No.  14,993.  The  accused  upon 
an  admitted  state  of  facts  was  declared  insane  and  discharged.  In 
the  course  of  his  opinion  in  the  case.  Judge  Story  used  the  following 
language : 

"In  general,  insanity  is  an  excuse  for  the  commission  of  every  crime, 
because  the  party  has  not  the  possession  of  that  reason  which  includes 
res[)onsibility.  An  exception  is  when  the  crime  is  committed  by  a 
party  while  in  a  state  of  intoxication ;  the  law  not  permitting  a  man 
to  avail  himself  of  his  own  gross  vice  and  misconduct  to  shelter  him- 
self from  the  legal  consequences  of  such  crime.  But  the  crime  must 
take  and  be  the  immediate  result  of  a  fit  of  intoxication,  and  while 
it  lasts,  and  not,  as  in  this  case,  a  remote  consequence,  superinduced 
by  the  antecedent  exhaustion  of  the  party  arising  from  gross  and 
habitual  drunkenness.  However  criminal,  in  a  moral  point  of  view, 
such  an-  indulgence  is,  and  however  justly  a  party  may  be  responsible 
for  his  acts  arising  from  it  to  Almighty  God,  human  tribunals  are 
generally  restricted  from  punishing  them,  since  they  are  not  the  acts 
of  a  reasonable  being.  Had  the  crime  been  committed  while  defend- 
ant was  in  a  fit  of  intoxication,  he  would  have  been  liable  to  be  con- 
victed of  murder.  As  he  was  not  then  intoxicated,  but  merely  insane 
from  an  abstinence  from  liquor,  he  cannot  be  pronounced  guilty  of 
the  offense.  The  law  looks  to  the  immediate  and  not  to  the  remote 
cause — to  the  actual  state  of  the  party,  and  not  to  the  causes  which 
remotely  caused  it. 

"Many  species  of  insanity  arise  remotely  from  what,  in  a  moral 
view,  is  a  criminal  negligence  or  fault  of  the  party,  as  from  religious 
melancholy,  undue  exposure,  extravagant  pride,  ambition,  etc.  Yet 
such  immunity  has  always  been  deemed  a  sufficient  excuse  for  any 
crime  done  under  its  influence." 

We  think  it  fairly  appears  from  the  recitals  of  the  accused  and 
those  of  the  judge  that  the  accused  was  in  a  state  of  intoxication  at 
the  time  of  the  homicide,  and  that  his  mental  condition  at  that  time, 
whatever  it  might  be,  was  the  immediate  and  direct  result,  and  not 
the  remote  result,  of  voluntary  drunkenness.  When  we  say  direct 
and  immediate  result,  we  mean  to  say  that  it  arose  during  a  condition 
of  drunkenness  and  pending  a  single,  continuing,  voluntary,  drunken 


48  PERSONS   CRIMINALLY    RESPONSIBLE,    AND    EXEMPTIONS 

debauch,  which  at  its  origin  started  with  the  accused  in  a  condition  of 
sanity.  The  results  were  in  a  legal  sense  immediate  and  direct  resultb, 
though  the  beginning  of  the  drunken  debauch  may  have  dated  some 
days  back,  or  even  some  weeks  before  the  homicide. 

We  think,  under  the  recitals  in  the  case,  that  it  is  precisely  such  a 
one  as  Mr.  Justice  Story  refers  to  in  which  he  says:  "Insanity,  or  a 
condition  of  mind  substantially  that  of  insanity,  would  not  serve  as 
a  shelter  or  a  protection  against  crime." 

We  think  that  this  was  the  view  taken  by  the  district  judge  of  the 
fact  and  law  of  the  case,  a  view  which  he  endeavored  to  place  before 
the  jury  in  his  charge.  We  think  he  fairly  advised  the  jury  as  to 
the  law,  though  there  were  some  expressions  in  his  charge  which  he 
might  well  have  omitted,  as  they  doubtless  did  not  instruct,  and  may 
perhaps  have  to  some  extent  confused,  the  jury.  We  do  not  think, 
however,  they  were  led  into  error  or  misled  by  these  expressions,  or 
that  they  were  prejudicial.  It  is  well  for  a  judge,  charging  a  jury 
as  to  insanity,  to  avoid  as  far  as  possible  the  use  of  technical  medical 
terms  as  to  the  various  forms  and  shades  of  mental  disease. 

They  are  not  likely  to  enlighten  or  impress  the  jury,  and  are  very 
liable  to  technical  objections. 

We  do  not  think  there  is  any  ground  for  the  reversal  of  the  judg- 
ment, and  it  is  hereby  affirmed. 

Rehearing  refused. 


WRITTEN  V.  STATE. 

(Supreme  Court  of  Alabama,  1S96.     115  Ala.  72,  22  South.  483.) 

CoLEAiAN,  J.'^  The  defendant  was  indicted  and  convicted  for  an  as- 
sault with  intent  forcibly  to  ravish.  There  was  evidence  introduced 
on  the  trial  to  show  that  at  the  time  of  the  misconduct  of  the  defend- 
ant he  was  sober,  and  there  was  evidence  tending  to  show  that  he  was 
drunk.  On  this  phase  of  the  evidence  the  defendant  requested  the 
court  to  give  the  following  charge:  "The  presumption  in  this  case 
is  that  the  defendant  is  innocent  until  the  state  has  proven  beyond  all 
reasonable  doubt  that  he  is  guilty;  and  if  the  jury  have  a  reasonable 
doubt,  growing  out  of  all  the  evidence,  as  to  whether  he  was  sufficient- 
ly sober  to  form  the  specific  intent  to  ravish,  then  the  jury  cannot  find 
the  defendant  guilty  of  an  assault  with  intent  to  ravish."  This  charge 
was  refused.  We  are  of  opinion  the  charge  should  have  been  given. 
In  order  to  convict  under  the  statute  for  an  assault  with  intent  to 
ravish,  it  is  necessary  to  satisfy  the  jury  beyond  a  reasonable  doubt 
that  the  defendant  entertained  the  specific  intent  charged  and  made  the 

f  Part  of  the  opinion  is  omitted. 


CORPORATIONS  49 

assault  to  accomplish  the  specific  purpose.  Mere  drunkenness  does 
not  excuse  or  palliate  an  offense,  but  it  may  produce  a  state  of  mind 
which  incapacitates  the  party  from  forming  or  entertaining  a  specific 
intent.  If  the  mental  condition  is  such  that  a  specific  intent  cannot 
be  formed,  whether  this  condition  is  caused  by  drunkenness  or  other- 
wise, a  party  cannot  be  said  to  have  committed  an  offense  a  necessary 
element  of  which  is  that  it  be  done  with  a  specific  intent.     *     *     * 

The  condition  of  the  defendant's  mind  arising  from  his  voluntary 
drunkenness  was  no  excuse  for  the  assault,  an  offense  included  in 
that  charged.  It  can  only  be  considered  upon  the  question  of  his  guilt 
of  the  statutory  offense  for  which  he  was  indicted,  to  wit,  an  assault 
with  intent  to  forcibly  ravish,  which  involves  the  condition  of  the  de- 
fendant's mind.     Engelhardt  v.  State,  88  Ala.  100,  7  South.  154. 

Reversed  and  remanded. 


IV.  Corporations 


UNITED  STATES  v.  JOHN  KELSO  COMPANY. 

(United  States  District  Court  for  California,  1S98.    86  Fed.  304.) 

De  Haven,  District  Judge.^  On  October  9,  1897,  there  was  filed 
in  this  court  by  the  United  States  district  attorney  for  this  district 
an  information  charging  the  defendant,  a  corporation,  with  the  vio- 
lation of  "xA.n  act  relating  to  the  limitation  of  the  hours  of  daily  serv- 
ice of  laborers  and  mechanics  employed  upon  the  public  works  of 
the  United  States  and  of  the  District  of  Columbia,"  approved  August 
1,  1892  (27  Stat.  340,  c.  352  [U.  S.  Comp.  St.  1913,  ,§§  8918-8920]  ; 
2  Supp.  Rev.  St.  p.  62).  Upon  the  filing  of  this  information,  the  court, 
upon  motion  of  the  district  attorney,  directed  that  a  summons  in 
the  general  form  prescribed  by  section  1390  of  the  Penal  Code  of 
this  state,  be  served  upon  said  corporation,  and  accordingly  on  said 
date  a  summons  was  issued,  directing  the  defendant  to  appear  before 
the  judge  of  said  court  in  the  courtroom  of  the  United  States  Dis- 
trict Court  for  this  district  on  the  21st  day  of  October,  1897,  to  an- 
swer the  charge  contained  in  the  information.  The  summons  stated 
generally  the  nature  of  the  charge,  and  for  a  more  complete  state- 
ment of  such  offense  referred  to  the  information  on  file.  On  the  day 
named  in  said  summons  for  its  appearance,  the  defendant  corporation 

8  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law   (3d  Ed.)   §§ 

9  Part  of  the  opinion  is  omitted. 

MiKELL.  Cas.Cb.L. — 1 


50  PERSONS   CRIMINALLY   RESPONSIBLE,    AND   EXEMPTIONS 

appeared  specially  by  its  attorney,  and  moved  to  quash  the  summons, 
and  to  set  aside  the  service  thereof,  upon  grounds  hereinafter  stated. 
Upon  the  argument  of  this  motion  it  was  claimed  in  behalf  of  the 
defendant:  First,  that  the  act  of  Congress  above  referred  to  does 
not  apply  to  corporations,  because  the  intention  is  a  necessary  ele- 
ment of  the  crime  therein  defined,  and  a  corporation  as  such  is  in- 
capable of  entertaining  a  criminal  intention ;  second,  that,  conceding 
that  a  corporation  may  be  guilty  of  a  violation  of  said  act.  Congress 
has  provided  no  mode  for  obtaining  jurisdiction  of  a  corporation  in 
a  criminal  proceeding,  and  for  that  reason  the  summons  issued  by 
the  court  was  unauthorized  by  law,  and  its  service  a  nullity.  It  will 
be  seen  that  the  first  objection  goes  directly  to  the  sufficiency  of  the 
information,  and  presents  precisely  the  same  question  as  would  a  gen- 
eral demurrer,  attacking  the  information  on  the  ground  of  an  alleged 
failure  to  charge  the  defendant  with  the  commission  of  a  public  of- 
fense. This  objection  is  one  which  would  not  ordinarily  be  consid- 
ered upon  a  motion  like  that  now  before  the  court,  when  the  party 
making  the  objection  refuses  to  acknowledge  the  jurisdiction  of  the 
court,  or  to  make  any  other  than  a  special  appearance  for  the  pur- 
pose of  attacking  its  jurisdiction;  but,  in  view  of  the  conclusion 
which  I  have  reached  upon  the  second  point  urged  by  the  defendant, 
it  becomes  necessary  for  me  to  determine  whether  the  act  of  Congress 
above  referred  to  is  applicable  to  a  corporation,  and  whether  a  cor- 
poration can  be  guilty  of  the  crime  of  violating  the  provisions  of 
said  act.  Section  1  of  that  act  makes  it  unlawful  for  a  contractor  or 
subcontractor  upon  any  of  the  public  works  of  the  United  States, 
whose  duty  it  shall  be  to  employ,  direct,  or  control  the  services  of 
laborers  or  mechanics  upon  such  public  works,  "to  require  or  permit 
any  such  laborer  or  mechanic  to  work  more  than  eight  hours  in  any 
calendar  day  except  in  case  of  extraordinary  emergency."  And  sec- 
tion 2  of  the  act  provides  "that  *  *  *  any  contractor  whose  duty 
it  shall  be  to  employ,  direct,  or  control  any  laborer  or  mechanic  em- 
ployed upon  any  public  works  of  the  United  States  *  *  *  who 
shall  intentionally  violate  any  provision  of  this  act,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  for  each  and  every  ofi^ense  shall  upon 
conviction  be  punished  by  a  fine  not  to  exceed  one  thousand  dollars 
or  by  imprisonment  for  not  more  than  six  months,  or  by  both  such 
fine  and  imprisonment,  in  the  discretion  of  the  court  having  juris- 
diction thereof."  It  will  be  observed  that  by  the  express  language 
of  this  statute  there  must  be  an  intentional  violation  of  its  provisions, 
in  order  to  constitute  the  offense  which  the  statute  defines.  In  view 
of  this  express  declaration,  it  is  claimed  in  behalf  of  defendant  that 
the  act  is  not  applicable  to  corporations,  because  it  is  not  possible  for 
a  corporation  to  commit  the  crime  described  in  the  statute.  The 
argument  advanced  to  sustain  this  position  is,  in  substance,  this :  That 
a  corjjoration  is  only  an  artificial  creation,  without  animate  body  or 


CORPORATIONS  51 

mind,  and  therefore,  from  its  very  nature,  incapable  of  entertaining 
the  specitic  intention  which,  by  the  statute,  is  made  an  essential  ele- 
ment of  the  crime  therein  defined.  The  case  of  State  v.  Manufactur- 
ing Co.,  20  Ale.  41,  Z7  Am.  Dec.  38,  supports  the  proposition  that  a 
corporation  is  not  amenable  to  prosecution  for  a  positive  act  of  mis- 
feasance, involving  a  specific  intention  to  do  an  unlawful  act,  and  it 
must  be  conceded  there  are  to  be  found  dicta  in  many  other  cases 
to  the  same  effect.  In  a  general  sense,  it  may  be  said  that  no  crime 
can  be  committed  without  a  joint  operation  of  act  and  intention.  In 
many  crimes,  however,  the  only  intention  required  is  an  intention 
to  do  the  prohibited  act — that  is  to  say,  the  crime  is  complete  when 
the  prohibited  act  has  been  intentionally  done ;  and  the  more  recent 
and  better-considered  cases  hold  that  a  corporation  may  be  charged 
with  an  offense  which  only  involves  this  kind  of  intention,  and  may 
be  properly  convicted  when,  in  its  corporate  capacity  and  by  direction 
of  those  controlling  its  corporate  action,  it  does  the  prohibited  act. 
In  such  a  case  the  intention  of  its  directors  that  the  prohibited  act 
should  be  done  is  imputed  to  the  corporation  itself.  State  v.  Railroad 
Co.,  23  N.  J.  Law,  360;  Reg.  v.  Great  North  of  England  Ry.  Co., 
58  E.  C.  L.  315;  Commonwealth  v.  Proprietors,  2  Gray  (Mass.)  339. 
See,  also,  State  v.  Railway  Co.,  15  W.  Va.  380,  36  Am.  Rep.  803. 
That  a  corporation  may  be  liable  civilly  for  that  class  of  torts  in 
which  a  specific  malicious  intention  is  an  essential  element  is  not  dis- 
puted at  this  day.  Thus  an  action  for  malicious  prosecuton  will  lie 
against  a  banking  corporation.  Reed  v.  Bank,  130  Mass.  443,  39 
Am.  Rep.  468 ;  Goodspeed  v.  Bank,  22  Conn.  530,  58  Am.  Dec.  439. 
An  action  will  lie  also  against  a  corporation  for  a  malicious  libel. 
Philadelphia,  W.  &  B.  R.  Co.  v.  Quigley,  21  How.  202,  16  L.  Ed.  73; 
Alaynard  v.  Insurance  Co.,  34  Cal.  48j  91  Am.  Dec.  672.  The  opin- 
ion in  the  latter  case,  delivered  by  Currey,  C.  J.,  is  an  able  exposi- 
tion of  the  law  relating  to  the  liability  of  corporations  for  malicious 
libel,  in  the  course  of  which  that  learned  judge,  in  answer  to  the  con- 
tention that  corporations  are  mere  legal  entities,  existing  only  in  ab- 
stract contemplation,  utterly  incapable  of  malevolence,  and  without 
power  to  will  good  or  evil,  said : 

"The  directors  are  the  chosen  representatives  of  the  corporation, 
and  constitute,  as  already  observed,  to  all  purposes  of  dealing  with 
others,  the  corporation.  What  they  do,  within  the  scope  of  the  ob- 
jects and  purposes  of  the  corporation,  the  corporation  does.  If  they 
do  any  injury  to  another,  even  though  it  necessarily  involves  in  its 
commission  a  malicious  intent,  the  corporation  must  be  deemed  by 
imputation  to  be  guilty  of  the  wrong,  and  answerable  for  it,  as  an 
individual  would  be  in  such  case." 

The  rules  of  evidence  in  relation  to  the  manner  of  proving  the  fact 
of  intention  are  necessarily  the  same  in  a  criminal  as  in  a  civil  case,. 
and  the  same  evidence  which  in  a  civil  case  would  be  sufficient  to 


52  PERSONS    CRIMINALLY   RESPONSIBLE,    AND    EXEMPTIONS 

prove  a  specific  or  malicious  intention  upon  the  part  of  a  corporation 
defendant  would  be  sufficient  to  show  a  like  intention  upon  the  part 
of  a  corporation  charged  criminally  with  the  doing  of  an  act  pro- 
hibited by  the  law.  Of  course,  there  are  certain  crimes  of  which  a 
corporation  cannot  be  guilty;  as,  for  instance,  bigamy,  perjury,  rape, 
murder,  and  other  offenses,  which  will  readily  suggest  themselves  to 
the  mind.  Crimes  like  these  just  mentioned  can  only  be  committed 
by  natural  persons,  and  statutes  in  relation  thereto  are  for  this  reason 
never  construed  as  referring'  to  corporations ;  but  when  a  statute  in 
general  terms  prohibits  the  doing  of  an  act  which  can  be  performed 
by  a  corporation,  and  does  not  expressly  exempt  corporations  from 
its  provisions,  there  is  no  reason  why  such  statute  should  be  construed 
as'  not  applying  to  them,  when  the  punishment  provided  for  its  in- 
fraction is  one  that  can  be  inflicted  upon  a  corporation — as,  for  in- 
stance, a  fine.  In  the  act  of  Congress  now  under  consideration  it  is 
made  an  offense  for  any  contractor  or  subcontractor,  whose  duty  it 
shall  be  to  employ,  direct,  or  control  any  laborer  employed  upon  any 
of  the  public  works  of  the  United  States,  to  require  or  permit  such 
laborer  to  work  more  than  eight  hours  in  any  calendar  day.  A  cor-, 
poration  may  be  a  contractor  or  subcontractor  in  carrying  on  public 
works  of  the  United  States,  and  as  such  it  has  the  power  or  capacity 
to  violate  the  provision  of  this  law.  Corporations  are,  therefore, 
within  the  letter,  and,  as  it  is  as  much  against  the  policy  of  the  law 
for  a-  corporation  to  violate  these  provisions  as  for  a  natural  person 
so  to  do,  they  are  also  within  the  spirit,  of  this  statute;  and  no  rea- 
son is  perceived  why  a  corporation  which  does  the  prohibited  act 
should  be  exempt  from  the  punishment  prescribed  therefor.  If  the 
law  should  receive  the  construction  contended  for  by  the  defendant, 
the  result  would  be  that  a  corporation,  in  contracting  for  the  doing 
of  any  public  work,  would  be  given  a  privilege  denied  to  a  natural 
person.  Such  an  intention  should  not  be  imputed  to  Congress,  un- 
less its  language  will  admit  of  no  other  interpretation.  *  *  * 
The  motion  of  the  defendant  will  be  denied. 


IGNORANCE   OR  MISTAKE   OIT   LAW  53 


V.  Ignorance  or  Mistake  of  Law  ^^ 


STATE  V.  BOYETT. 

(Supreme  Court  of  North  Caroliua,  1849.     32  N.  C.  33G.) 

Pearson,  J.^^  "Ignorantia  legis  neminem  excusat."  Every  one 
competent  to  act  for  himself  is  presumed  to  know  the  law.  No  one 
is  allowed  to  excuse  himself  by  pleading  ignorance.  Courts  are  com- 
pelled to  act  upon  this  rule,  as  well  in  criminal  as  civil  matters.  It  lies 
at  the  foundation  of  the  administration  of  justice.  And  there  is  no 
telling  to  what  extent,  if  admissible,  the  plea  of  ignorance  would  be 
carried,  or  the  degree  of  embarrassment  that  would  be  introduced 
into  every  trial,  by  conflicting  evidence  upon  the  question  of  igno- 
rance. 

In  civil  matters,  it  is  admitted,  the  presumption  is  frequently  not  in 
accordance  with  the  truth.  The  rules  of  property  are  complicated  sys- 
tems— the  result,  "not  of  the  reason  of  any  one  man,  but  of  many  men 
put  together" ;  hence  they  are  not  often  understood,  and  more  fre- 
quently not  properly  applied,  and  the  presumption  can  only  be  justi- 
fied upon  the  ground  of  necessity.  But  in  criminal  matters  the  pre- 
sumption most  usually  accords  with  the  truth.  As  to  such  as  are  mala 
in  se,  every  one  has  an  innate  sense  of  right  and  wrong,  which  ena- 
bles him  to  know  when  he  violates  the  law,  and  it  is  of  no  conse- 
quence if  he  be  not  able  to  give  the  name  by  which  the  offense  is 
known  in  the  lawbooks,  or  to  point  out  the  nice  distinctions  between 
the  different  grades  of  oft'ense.  As  to  such  as  are  "mala  prohibita," 
they  depend  upon  the  statutes  printed  and  published  and  put  within 
the  reach  of  every  one ;  so  that  no  one  has  a  right  to  complain  if  a 
presumption,  necessary  to  the  administration  of  the  law,  is  applied 
to  him.  To  allow  ignorance  as  an  excuse  would  be  to  offer  a  reward 
to  the  ignorant. 

The  defendant  voted,  when  he  was  not  entitled  by  law  to  vote.  He 
is  presumed  to  know  the  law.  Hence  he  voted,  knowing  that  he  had 
no  right,  and,  acting  with  this  knowledge,  he  necessarily  committed  a 
fraud  upon  the  public — in  the  words  of  the  act,  he  knowingly  and 
fraudulently  voted  when  he  was  not  entitled  to  vote.  It  being  proved 
on  the  part  of  the  state  that  he  voted,  not  having  resided  within  the 
bounds  of  the  company  for  six  months  next  preceding  the  election, 
a  case  was  made  out  against  him. 

10  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (Sd  Ed.)  §§ 
33,  34. 

11  The  statement  of  facts  is  omitted. 


54  PERSONS   CRIMINALLY    RESPONSIBLE,    AND    EXEMPTIONS 

He  offered  to  prove,  for  the  purpose  of  rebutting  the  inference  of 
fraud,  that  he  had  stated  the  facts  to  a  respectable  gentleman,  who 
advised  him  he  had  a  right  to  vote.  His  honor  held  the  testimony 
inadmissible.     We  concur  in  that  opinion. 

The  evidence  had  no  tendency  to  rebut  the  inference  of  fraud,  for 
the  inference  was  made  from  his  presumed  knowledge  of  the  law, 
and  that  presumption  could  not  be  met  by  any  such  proof,  without 
introducing  all  the  evils  which  the  rule  was  intended  to  avoid.  The 
question,  in  effect,  was :  Shall  a  man  be  allowed,  in  excuse  of  a  vio- 
lation of  the  law,  to  prove  that  he  was  ignorant  of  the  very  law  un- 
der which  he  professed  to  act,  and  under  which  he  claimed  the  priv- 
ilege of  voting?  H  he  w^as  not  ignorant  of  the  law,  and  that  he  can- 
not be  heard  to  allege,  then  he  voted  knowingly,  and,  by  necessary 
inference,  fraudulently. 

An  indictment  for  extortion   charges  that  the  defendant  received 
the   fee   "unlawfully,    corruptly,   deceitfully,   and   extorsively."     This 
averment  the  state  must  prove.     It  is  done  by  showing  that  the  de- 
fendant received  what  the  law  does  not  allow  him  to  take;    for  the 
presumption  is  "he  knew  the  law  upon  the  subject  of  fees  to  be  taken 
by  himself,"  and  the  inference  from  such  knowledge  is  that  he  acted 
"corruptly  and  deceitfully"  (words  quite  as  strong  as  knowingly  and 
fraudulently),  unless  it  is  shown  that  he  did  so  by  some  inadvertence 
or  mistake  in  calculation.     He  cannot  excuse  himself  for  taking  more 
than  the  legal  fee  by  saying  that  he  was  misled  by  the  advice  of  an 
attorney.     If  such,  or  like,  excuses  were  admitted,  it  would  hardly 
ever  be  possible  to   convict.     He  might   always   contrive  to  ground 
his  conduct  upon  misapprehension  or  improper  advice.     State  v.  Dick- 
ens, 2  N.  C.  406.     It  would  be  a  different  question  if  the  defendant 
had  stated  the  facts  to  the  judges  of  the  election,  and  they  had  decided 
in  favor  of  his  right  to  vote ;    for  their  decision  would  rebut  the  pre- 
sumption of  knowledge  on  his  part  in  a  manner  contemplated  by  law. 
The  case  was  ably  argued  for  the  defendant.     It  was  insisted  that 
it  was  necessary  for  the  state  to  aver  and  prove  that  the  defendant 
voted  knowingly  and  fraudulently.     That  position  is  admitted.     The 
reply  is  the  averment  was  made  and  was  proved;    for,  proof  being 
made  that  he  voted  when  he  was  not  entitled  to  vote,  the  presumption 
is  that  he  knew   the  law,   and   fraud  is  the  necessary  inference,   as 
corruption  and  deceit  were  in  the   case  above   cited.     It  cannot  be 
contended  that,  to  fix  him  with  knowledge,  the  state  must  show  that 
some  one  read  and  explained  the  law  to  him;    or,  to  fix  him  with 
fraud,  that  it  must  be  proven  he  had  been  bribed.     If  so,  the  statute 
is  a  dead  letter.     Our  attention  was  called  to  the  fact  that  the  act  of 
1844  (Laws  1844-45,  p.  67,  c.  43),  making  the  offense  indictable,  uses 
the  words,  "knowingly  and  fraudulently,"  which  words  are  not  used 
in  the  act  of  1777,  imposing  a  penalty.     To  incur  the  penalty  under 
the  act  of   1777,  the  voting  must  be  unlawful,  and  it  must  be  done 


IGNORANCE    OU   MISTAKE    OF   LAW  OO 

knowingly  and  fraudulently,  in  the  sense  above  explained.  If  one, 
having  a  deed  for  50  acres  of  land,  votes  in  the  Senate,  and  it  turns 
out  that  the  deed  only  contains  49  acres,  the  penalty  is  not  incurred, 
unless  he  knew  the  fact  at  the  time  he  voted.  So,  if  one  votes  for 
a  constable,  and  it  turns  out  that  the  dividing  line  includes  him  in 
another  company,  there  is  not  in  either  case  that  criminal  intent  which 
is  a  necessary  ingredient  of  the  offense,  whether  it  be  punished  by 
a  penalty  or  by  indictment.  The  act  of  1844  expresses  in  so  many 
words  what  the  law  would  have  implied.  It  is  a  strained  inference 
that  by  so  doing  the  Legislature  intended  to  make  the  case  of  illegal 
voting  an  "exception,"  and  to  take  it  out  of  the  rule  "ignorantia  legis," 
a  rule  which  has  always  been  acted  upon  in  our  law,  and  in  the  laws 
of  every  nation  of  which  we  have  any  knowledge,  and  without  which, 
in  fact,  the  law  cannot  be  administered.  The  inference  sought  to 
be  made  results  in  this :  The  Legislature  did  not  intend  the  act  of 
1844  to  be  carried  into  effect.  It  was  intended  to  be  "brutum  fulmen." 
No  reason  has  been  suggested  for  making  an  exception  in  this  case. 
The  only  additional  qualification  to  that  of  a  voter  for  a  member  of 
the  House  of  Commons  is  a  residence  of  six  months  in  the  captain's 
company. 

This  is  not  complicated  or  difficult  to  be  understood.  Why  make 
the  exception,  and  offer  a  reward  for  ignorance  in  this  particular  case? 
Such  a  construction  cannot  be  admitted,  unless  the  lawmakers  had 
declared  their  intention  by  positive  enactment. 

Per  Curiam.  There  is  no  error  in  the  court  below,  and  the  same 
must  be  so  certified. 


CUTTER  V.  STATE. 

(Supreme  Court  of  New  Jersey,  1873.    36  N.  J.  Law,  125.) 

The  opinion  of  the  court  was  delivered  by  BiSaslEy,  C.  J.^^  Th'-- 
defendant  was  indicted  for  extortion  in  taking  fees  to  which  he  was 
not  entitled,  on  a  criminal  complaint  before  him  as  a  justice  of  the 
peace.  The  defense  which  he  set  up,  and  which  was  overruled,  was 
that  he  had  taken  these  moneys  innocently,  and  under  a  belief  that 
by  force  of  the  statute  he  had  a  right  to  exact  them. 

This  subject  is  regulated  by  the  twenty-eighth  section  of  the  act 
for  the  punishment  of  crimes.  Nix.  Dig.  197.  This  clause  declare.^ 
that  no  justice  or  other  officer  of  this  state  shall  receive  or  take  any 
fee  or  reward  to  execute  and  do  his  duty  and  office  but  such  as  is  or 
shall  be  allowed  by  the  laws  of  this  state,  and  that  "if  any  justice, 
etc.,  shall  receive  or  take,  by  color  of  his  office  any  fee  or  reward 

12  Part  of  tlie  opiuion  is  omitted.  ' 


56  PEESONS   CRIMINALLY    RESPONSIBLE,    AND    EXEMPTIONS 

svhatsoever,  not  allowed  by  the  laws  of  this  state,  for  doing  his  office, 
and  be  thereof  convicted,  he  shall  be  punished,"  etc.     *     *     * 

If  the  magistrate  received  the  fees  in  question  without  any  corrupt 
intent,  and  under  the  conviction  that  they  were  lawfully  his  due,  I 
do  not  think  such  an  act  was  a  crime  by  force  of  the  statute  above 
cited. 

But  it  is  argued  on  the  part  of  the  prosecution  that  as  the  fees 
to  which  the  justice  was  entitled  are  fixed  by  law,  and  as  he  cannot 
set  up  as  an  excuse  for  his  conduct  his  ignorance  of  the  law,  his  guilty 
knowledge  is  undeniable.  The  argument  goes  upon  the  legal  maxim, 
"Ignorantia  legis  neminem  excusat."  But  this  rule,  in  its  application 
to  the  law  of  crimes,  is  subject,  as  it  is  sometimes  in  respect  to  civil 
rights,  to  certain  important  exceptions.  Where  the  act  done  is  malum 
in  se,  or  where  the  law  which  has  been  infringed  was  settled  and 
plain,  the  maxim,  in  its  rigor,  will  be  applied ;  but  where  the  law 
is  not  settled,  or  is  obscure,  and  where  the  guilty  intention,  being  a 
necessary  contituent  of  the  particular  offense,  is  dependent  on  a 
knowledge  of  the  law,  this  rule,  if  enforced,  would  be  misapplied. 
To  give  it  any  force  in  such  instances  would  be  to  turn  it  aside  from 
its  rational  and  original  purpose,  and  to  convert  it  into  an  instru- 
ment of  injustice.  The  judgments  of  the  courts  have  confined  it  to 
its  proper  sphere.  Whenever  a  special  mental  condition  constitutes 
a  part  of  the  offense  charged,  and  such  condition  depends  on  the 
question  whether  or  not  the  culprit  had  certain  knowledge  with  respect 
to  matters  of  law,  in  every  such  case  it  has  been  declared  that  the 
subject  of  the  existence  of  such  knowledge  is  open  to  inquiry  as  a 
fact  to  be  found  by  the  jury.  This  doctrine  has  often  been  applied 
to  the  offense  of  larceny.  The  criminal  intent,  which  is  an  essential 
part  of  that  crime,  involves  a  knowledge  that  the  property  taken  be- 
longs to  another;  but  even  when  all  the  facts  are  known  to  the  ac- 
cused, and  so  the  right  to  the  property  is  a  mere  question  of  law, 
still  he  will  make  good  his  defense  if  he  can  show  in  a  satisfactory 
manner  that,  being  under  a  misapprehension  as  to  his  legal  rights, 
he  honestly  believed  the  articles  in  question  to  be  his  own.  Rex  v. 
Hall,  3  Car.  &  P.  409 ;   Reg.  v.  Reed,  Car.  &  M.  306. 

The  adjudications  show  many  other  applications  of  the  same  prin- 
ciple, and  the  facts  of  some  of  such  cases  were  not  substantially  dis- 
similar from  those  embraced  in  the  present  inquiry.  In  the  case  of 
People  v.  Whaley,  6  Cow.  (N.  Y.)  661,  a  justice  of  the  peace  had 
been  indicted  for  taking  illegal  fees,  and  the  court  held  that  the 
motives  of  the  defendant,  whether  they  showed  corruption  or  that 
he  acted  through  a  mistake  of  the  law,  were  a  proper  question  for  a 
jury.  The  case  of  Commonwealth  v.  Shed,  1  Mass,  228,  was  put 
before  the  jury  on  the  same  ground.  This  was  likewise  the  ground 
of  decision  in  the  case  of  Commonwealth  v.  Bradford,  9  Mete.  (Mass.) 
268;    the  charge  being  for  illegal  voting,  and  it  being  declared  that 


IGNORANCE    OR   MISTAKE    OF   FACT — COMMON-LAW   OFFENSES  07 

evidence  that  the  defendant  had  consulted  counsel  as  to  his  right  of 
suffrage  and  had  acted  on  the  advice  thus  obtained  was  admissible 
in  his  favor.  This  evidence  w^as  only  important  to  show  that  the 
defendant,  in  infringing  the  statute,  had  done  so  in  ignorance  of  the 
rule  of  law  upon  the  subject.  Many  other  cases  resting  on  the  same 
basis  might  be  cited ;  but  the  foregoing  are  sufficient  to  mark  clearly 
the  boundaries  delineated  by  the  courts  to  the  general  rule  that  igno- 
rance of  law  is  no  defense  when  the  mandates  of  a  statute  have  been 
disregarded  or  a  crime  has  been  perpetrated.  That  the  present  case 
falls  within  the  exceptions  to  this  general  rule  appears  to  me  to  be 
plain.  There  can  be  no  doubt  that  an  opinion  very  generally  pre- 
vailed that  magistrates  had  the  right  to  exact  the  fees  which  were 
received  by  this  defendant  and  that  they  could  be  legally  taken  under 
similar  circumstances.  The  prevalence  of  such  an  opinion  could 
not,  it  is  true,  legalize  the  act  of  taking  such  fees ;  but  its  existence 
might  tend  to  show  that  the  defendant,  when  he  did  the  act  with 
which  he  stands  charged,  was  not  conscious  of  doing  anything  wrong. 
If  a  justice  of  the  peace,  being  called  upon  to  construe  a  statute 
with  respect  to  the  fees  coming  to  himself,  should,  exercising  due 
care,  form  an  honest  judgment  as  to  his  dues,  and  should  act  upon 
such  judgment,  it  would  seem  palpably  unjust,  and  therefore  incon- 
sistent with  the  ordinary  grounds  of  judicial  action,  to  hold  such 
conduct  criminal  if  it  should  happen  that  a  higher  tribunal  should 
dissent  from  the  view  thus  taken,  and  should  decide  that  the  stat- 
ute was  not  susceptible  of  the  interpretation  put  upon  it.  I  think 
the  defendant  had  the  right  in  this  case  to  prove  to  the  jury  that  the 
moneys,  which  it  is  charged  he  took  extorsively,  were  received  by 
him  under  a  mistake  as  to  his  legal  rights,  and  that,  as  such  evidence,, 
being  offered  by  him,  was  overruled,  the  judgment  on  that  account 
must  be  reversed. 


VI.  Ignorance  or  Mistake  of  Fact — Common-Law  Offenses  ^' 


STATE  v.  NASH. 

(Supreme  Court  of  North  Carolina,  1SS3.     88  N,  C.  618.) 

Indictment  for  assault  and  battery,  tried  at  the  Fall  term,  1882,  of 
Richmond  superior  court,  before  Gilmer,  j,     *     *     * 

The  defendant  was  put  upon  the  stand  as  a  witness  in  his  own 
behalf,  admitted  that  he  fired  the  gun  at  the  crowd,  and  proposed  to 

•i«For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed)  §  35. 


58  PERSONS    CRIMINALLY    RESPONSIBLE,    AND    EXEMPTIONS 


prove  that,  before  he  fired,  his  child,  who  was  sleeping  near  a  win- 
dow in  the  house,  through  which  the  noise  of  the  bells  and  horns 
and  firing  was  heard  and  the  flash  of  the  firing  seen,  rose  up  and  ran 
to  the  witness  with  blood  on  her  face  (caused,  as  he  afterwards 
learned,  but  did  not  then  know,  by  her  running  against  the  end  of 
a  table),  and  under  the  impulse  of  the  moment,  believing  that  she 
had  been  shot,  he  got  his  gun  and  went  to  the  door,  and,  seeing 
the  flash  of  pistols,  fired,  as  he  supposed,  by  the  retreating  crowd, 
fired  his  gun  at  and  into  the  crowd.  This  evidence  was  objected  to 
by  the  state  and  excluded  by  the  court,  and  the  defendant  excepted. 

The  court  instructed  the  jury  that  the  defendant  had  not  shown 
justification  for  the  shooting.  Verdict  of  guilty;  judgment;  appeal 
by  the  defendant. 

Ashe;,  J.^*  The  question  presented  by  the  record  is,  was  there  error 
in  the  refusal  of  the  judge  to  receive  the  evidence  ofifered  by  the  de- 
fendant? We  are  of  the  opinion  there  was  error  in  rejecting  so  much 
of  the  proposed  testimony  as  tended  to  show,  on  the  part  of  the  de- 
fendant, a  reasonable  ground  of  belief  that  the  trespassers  upon  his 
premises  had  fired  into  his  house  and  wounded  his  child. 

It  may  be,  as  testified  by  the  prosecutor,  that  the  band  of  young 
men  who  went  to  the  defendant's  house  on  the  night  in  question  only 
intended  innocent  amusement ;  but  there  is  one  unusual  and  rather  ex- 
traordinary feature  in  the  transaction — that  the  party  intending  a 
mere  serenade  should,  on  such  an  occasion,  carry  guns  and  pistols. 
They  are  certainly  very  unusual  instruments  of  music  in  the  hands 
even  of  a  calithumpian  band. 

They  entered  the  inclosure,  20  in  number,  and  marched  round  the 
house,  blowing  horns,  ringing  bells,  and  firing  guns  and  pistols,  which 
must  have  greatly  frightened  the  family  and  the  defendant  himself, 
unless  he  is  a  man  of  more  than  ordinary  courage.  But,  whether  awed 
or  not  by  such  a  display  of  numbers  and  lawlessness,  yielding  to  the 
dictates  of  prudence,  he  submitted  to  the  humiliating  indignity  and 
remained  within  doors  until  his  little  daughter,  as  he  proposed  to 
show,  ran  to  him  with  her  face  bleeding;  and  believing,  as  was 
natural  under  the  circumstances,  that  she  had  been  shot,  he  seized 
his  gun  and  went  to  the  door,  saw  the  flash  of  firearms,  shot  into  the 
crowd,  and  wounded  the  prosecutor.  We  must  suppose  it  was  all 
the  work  of  an  instant.  Did  the  defendant,  under  these  circumstances, 
have  reasonable  ground  to  believe  that  his  daughter  had  been  shot, 
and  the  assault  upon  him  and  his  house  was  continuing?  If  he  had, 
then  he  ought  to  have  been  acquitted. 

We  know  this  has  been  a  much  mooted  question,  but  upon  an  in- 
vestigation of  the  authorities  our  conclusion  is  that  a  reasonable  be- 
lief that  a  felony  is  in  the  act  of  being  committed  on  one  will  excuse 

14  The  statement  of  facts  is  abridged. 


IGNORANCE   OR   MISTAKE    OF   FACT — COMMON-LAW    OFFENSES  tiO 

the  killing  of  the  supposed  assailant,  though  no  felony  was  in  fact 
intended;  and  whatever  will  excuse  homicide  will,  of  course,  excuse 
assault  and  battery. 

In  State  v.  Scott,  26  N.  C.  409,  42  Am.  Dec.  148,  the  court  says : 
"In  consultation  it  seemed  to  us  at  one  time  that  the  case  might  prop- 
erly have  been  left  to  the  jury,  favorably  to  the  prisoner,  on  the  prin- 
ciple of  Levet's  Case,  Cro.  Car.  538,  1  Hale,  474,  which  is  that  if  the 
prisoner  had  reasonable  ground  for  believing  that  the  deceased  in- 
tended to  kill  him,  and  under  that  belief  slew  him,  it  would  be  ex- 
cusable, or,  at  most,  only  manslaughter,  though  in  truth  the  deceased 
had  no  such  design. at  the  time."  It  is  to  be  noted  that  Levet  was 
acquitted.  But  the  court  did  not  give  the  prisoner,  in  Scott's  Case, 
the  benefit  of  the  principle,  for  the  reason  that  no  such  instruction 
had  been  asked  in  the  court  below;  the  court  concluding  that  the 
prisoner  would  have  requested  the  instruction,  if  he  had  acted  upon 
such  belief,  and  there  were,  besides,  other  circumstances  in  the  case 
which  prevented  the  application  of  the  principle.  But  it  is  clearly 
to  be  deduced  from  the  opinion  of  Chief  Justice  Ruffin,  who  spoke 
for  the  court,  that  in  a  proper  case  the  principle  might  be  invoked 
to  excuse  a  defendant.  See,  also,  Patterson  v.  People,  46  Barb.  (N. 
Y.)  627. 

The  same  doctrine  was  enunciated  by  Parker,  J.,  afterwards  Chief 
Justice  of  the  Supreme  Court  of  Massachusetts,  in  the  famous  case 
of  Commonwealth  v.  Selfridge,  Self.  Trial,  100,  and  the  principle 
is  thus  illustrated :  "A.,  in  the  peaceful  pursuit  of  his  affairs,  sees 
B.  walking  towards  him  with  an  outstretched  arm  and  a  pistol  in 
his  hand,  and  using  violent  menaces  against  his  life  as  he  advances. 
Having  approached  near  enough  in  the  same  attitude.  A.,  who  has 
a  club  in  his  hand,  strikes  B.  over  the  head  before  or  at  the  same 
instant  the  pistol  is  fired,  and"  of  the  wound  B.  dies.  It  turned  out 
that  the  pistol  was  in  fact  loaded  with  powder  only,  and  that  the  real 
design  of  B.  was  only  to  terrify  A."  The  judge  inquired:  "Will 
any  reasonable  man  say  that  A.  is  more  criminal  than  he  would  have 
been  if  there  had  been  a  ball  in  the  pistol?"  2  Whar.  Crim.  Law,  § 
1026  (g),  and  note;   Whar.  Law  of  Homicide,  215  et  seq. 

But  it  may  be  objected  that  the  defendant  acted  too  rashly.-  Be- 
fore he  resorted  to  the  use  of  his  gun,  he  should  have  taken  the  pre- 
caution to  ascertain  the  fact  whether  his  child  had  been  actually  shot. 
But  that  doctrine  is  inconsistent  with  the  principle  we  have  announced. 
If  the  defendant  had  reason  to  believe  and  did  believe  in  the  danger, 
he  had  the  right  to  act  as  though  the  danger  really  existed  and  was 
imminent.  Taking,  then,  the  fact  to  be  that  the  trespassers  had  fired 
into  the  defendant's  house  and  shot  his  child,  and  the  firing  continued, 
there  was  no  time  for  delay.  The  occasion  required  prompt  action. 
The  TTrxt  shot  might  strike  him  or  some  other  member  of  his  family. 


CO  PERSONS    CRIMINALLY   RESPONSIBLE,    AND    EXEMPTIONS 

Under  these  circumstances  the  law  would  justify  the  defendant  in 
firing  upon  his  assailants  in  defense  of  himself  and  his  family. 

But,  as  we  have  said,  the  grounds  of  belief  must  be  reasonable. 
The  defendant  must  judge,  at  the  time,  of  the  ground  of  his  appre- 
hension, and  he  must  judge  at  his  peril ;  for  it  is  the  province  of  the 
jury  on  the  trial  to  determine  the  reasonable  ground  of  his  belief. 
And  here  the  error  is  in  the  court's  refusing  to  receive  the  proposed 
evidence,  and  submitting  that  question  to  the  consideration  of  the 
jury.     A  venire  de  novo  must  be  awarded. 

Smith,  C.  J.  (dissenting).  I  am  unable  to  concur  with  the  other 
members  of  the  court  in  the  conclusion  reached  that  the  testimony 
of  the  defendant  in  explanation  of  his  conduct,  if  admitted  and  be- 
lieved, would  be  a  defense  to  the  charge,  or  have  any  other  legal 
effect  than  to  mitigate  his  offense ;  and  hence,  as  immaterial  upon 
the  issue  and  tending  to  mislead,  there  is  no  error  in  rejecting  it. 

The  facts  in  connection  with  this  proposed  statement  are  sum- 
marily as  follows :  A  boisterous  and  unruly  crowd,  in  what  seems 
to  have  been  a  frolic,  enter  the  defendant's  premises  in  the  early 
night  with  bells,  horns,  and  firearms,  by  the  noise  of  which  as  they 
pass  round  his  dwelling  himself  and  his  family  are  greatly  annoyed 
and  their  peace  disturbed.  As  they  are  about  to  leave,  his  little 
frightened  daughter  runs  up  to  him  with  blood  upon  her  face,  caused 
by  her  striking  against  a  table,  but  which  he  then  supposed  to  pro- 
ceed from  a  shot  wound.  Acting  upon  the  impulse  produced  by 
this  misconception,  and  without  stopping  to  make  inquiry  as  to  the 
cause  or  extent  of  the  inquiry  [injury?],  he  seizes  his  gun,  loaded  with 
shot  of  large  size,  hastens  to  the  door  and  out  into  the  porch,  and,  see- 
ing the  flash  of  the  gun,  fires  into  the  retreating  body,  then  near  the 
outer  gate,  some  35  yards  distant,  without  a  word  of  warning  or 
remonstrance,  and  wounds  one  of  the  number  in  the  leg. 

This  was,  in  my  opinion,  a  hasty  and  unauthorized  act  in  the  use 
of  a  deadly  weapon,  not  in  defense  of  himself  or  family  or  premises, 
but  the  offspring  of  a  spirit  of  retaliation  for  what  he  erroneously 
supposed  to  have  been  done,  and  whose  error  could  have  at  once 
been  corrected.  If  death  had  ensued,  the  circumstances  would  not 
have  excused  the  homicide,  and,  as  it  was  not  fatal,  it  cannot  be  less 
than  an  assault. 

Human  life  is  too  safely  guarded  by  law  to  allow  it  to  be  put  in 
peril  upon  such  provocation,  and,  however  much  it  may  palliate  the 
defendant's  impulse  and  the  rash  act  in  which  it  resulted,  it  cannot, 
in  my  opinion,  excuse  his  use  of  a  deadly  instrument  in  so  reckless 
a  manner. 

PiiR  Curiam.    Venire  de  novo. 


SAME — STATUTORY   OFFENSES  Gl 


VII.  Same — Statutory  Offenses 


IB 


STATE  V.  RIPPETH. 

(Supreme  Court  of  Ohio,  1904.    71  Ohio  St.  85,  72  N.  E.  298.) 

One  Rippeth  was  convicted  of  selling  oleomargarine  in  imitation  of 
butter,  and  on  error  the  judgment  of  conviction  v^as  set  aside  in  the 
circuit  court,  and  the  state  brings  error. 

The  defendant  in  error  was  charged,  by  affidavit  filed  with  P.  A.  Car- 
ver, a  justice  of  the  peace  in  and  for  Franklin  township,  Tuscarawas 
county,  with  having  unlawfully  sold  and  delivered  to  one  Martin  Cow- 
en  oleomargarine  to  the  amount  of  one  pound,  which  oleomargarine 
then  and  there  contained  artificial  (yellow)  coloring  matter,  the  name 
of  which  coloring  matter  was  unknown  to  the  affiant,  contrary  to  stat- 
ute in  such  case  made  and  provided,  etc.  On  this  affidavit  the  defend- 
ant was  put  upon  trial  to  a  jury  of  12  men.  The  purchaser  of  the  said 
oleomargarine,  Martin  Cowen,  is  an  inspector  in  the  dairy  and  food 
department  of  the  state  of  Ohio,  and  it  appeared  upon  the  trial  that 
on  the  17th  day  of  January,  1901,  the  said  Martin  Cowen  entered  the 
grocery  of  the  defendant  in  error,  presented  his  card,  which  contained 
his  name,  address,  and  official  capacity,  then  and  there  stating  to  said 
defendant  in  error  that  he  was  a  state  food  inspector,  and  that  he  de- 
sired to  see  his  oleomargarine.  The  defendant  in  error  took  said  Cow- 
en around  his  counter  and  showed  him  the  oleomargarine,  which  was 
done  up  in  pound  packages.  Cowen  said  to  Rippeth,  "I  would  like  to 
have  a  pound  of  this  oleomargarine  for  analysis,"  whereupon  Rippeth 
said,  "All  right,"  and  dehvered  the  oleomargarine,  and  accepted  the 
market  price  therefor.  The  same  was  taken  to  a  chemist — Prof. 
Hobbs — and  was  analyzed  by  him,  and  proved  to  contain  coloring  mat- 
ter. At  the  close  of  the  testimony  offered  by  the  state  the  defendant 
made  a  motion  to  the  justice  to  direct  a  verdict  in  his  behalf.  The  court 
overruled  this  motion,  and,  no  evidence  being  offered  by  the  defense, 
the  case  was  argued  by  counsel,  and  after  a  charge  by  the  court  was 
submitted  to  the  jury,  who  returned  a  verdict  of  guilty.  Motion  to  set 
aside  the  verdict  was  filed  by  the  defendant,  and  overruled  by  the  jus- 
tice. A  bill  of  exceptions  was  prepared,  signed,  and  allowed,  and  pro- 
ceedings in  error  prosecuted  in  the  court  of  common  pleas,  where  the 
judgment  of  the  justice  of  the  peace  was  affirmed.  On  petition  in  error 
in  the  circuit  court  the  judgment  of  the  court  of  common  pleas  was 
reversed,  and  this  proceeding  in  error  is  prosecuted  to  reverse  the  judg- 

16  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §  .36. 


62  PERSONS   CRIMINALLY    RESPONSIBLE,    AND    EXEMPTIONS 


ment  of  the  circuit  court  and  affirm  the  judgment  of  the  court  of  com- 
mon pleas. 

Pkr  Curiam.  Section  4200-16,  Bates'  Ann.  St.,  makes  it  a  penal 
offense  for  any  person  to  "sell  or  deliver"  any  oleomargarine  which 
contains  coloring  matter.  This  is  a  police  regulation,  imposing  a  pen- 
alty irrespective  of  criminal  intent;  and  it  contains  no  exception  in 
favor  of  any  person,  nor  as  to  whom  the  prohibited  article  may  be 
sold  or  delivered,  nor  for  what  purpose.  The  dealer  in  the  adulter- 
ated article  has  it  in  his  possession  for  sale,  and  sells  or  delivers  the 
same  at  his  peril.  He  cannot  shield  himself  by  the  plea  of  ignorance 
in  regard  to  its  character,  nor  by  the  plea  that  he  made  the  sale  for 
analysis,  or  for  any  other  purpose.  State  v.  Kelly,  54  Ohio  St.  166, 
43  N.  E.  163;   State  v.  Hutchinson,  56  Ohio  St.  82,  46  N.  E.  71. 

Judgment  of  the  circuit  court  reversed,  and  judgment  of  the  court  of 
common  pleas  affirmed. 

Spe;ar,  C.  J.,  and  Davis,  Shauck,  Price,  and  Summers,  JJ.,  con- 
cur.   Crew,  J.,  dissents.^" 


VIII.  Justification — Duress  ^'' 


RESPUBLICA  V.  McCARTY. 
(Supreme  Court  of  Pennsylvania,  1781.    2  Dall.  86,  1  L.  Ed.  300.) 

The  defendant  was  indicted  for  high  treason,  in  levying  war,  etc., 
by  joining  the  armies  of  the  king  of  Great  Britain.     *     *     * 

McKean,  C.  J.^^  The  crime  imputed  to  the  defendant  by  the  in- 
dictment is  that  of  levying  war,  by  joining  the  armies  of  the  king  of 
Great  Britain.  Enlisting,  or  procuring  any  person  to  be  enlisted,  in 
the  service  of  the  enemy,  is  clearly  an  act  of  treason.  By  the  defend- 
ant's own  confession  it  appears  that  he  actually  enlisted  in  a  corps  be- 
longing to  the  enemy ;  but  it  also  appears  that  he  had  previously  been 
taken  prisoner  by  them  and  confined  at  Wilmington.  He  remained, 
however,  with  the  British  troops  for  10  or  11  months,  during  which 
he  might  easily  have  accomplished  his  escape;  and  it  must  be  remem- 
bered that,  in  the  eye  of  the  law,  nothing  will  excuse  the  act  of  joining 
an  enemy  but  the  fear  of  immediate  death — not  the  fear  of  any  infe- 
rior personal  injury,  nor  the  apprehension  of  any  outrage  upon  prop- 

10  The  dissentins  opinion  of  Crew,  J.,  is  omitted. 

1'^  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §  39, 

18  Part  of  this  ease  is  omitted. 


JUSTIFICATION — DURESS  63 

erty.     But,  had  the  defendant  enlisted  merely  from  the  fear  of  fam- 
ishing, and  with  a  sincere  intention  to  make  his  escape,  the  fear  could 
not  surely  always  continue,  nor  could  his  intention  remain  unexecuted 
for  so  long  a  period.     *     *     * 
Verdict — Not  guilty. 


RIGGS  V.  STATE. 

(Supreme  Court  of  Tennessee,  1S66.    3  Cold.  85,  91  Am.  Dec.  272.) 

The  plaintiff  in  error  was  convicted  at  the  August  term,  1866,  of 
murder  in  the  second  degree,  and  sentenced  to  15  years'  imprisonment 
in  the  penitentiary,  from  which  he  appealed.  Judge  James  P.  Swan, 
presiding. 

SHACKELf'ORD,  J.,^®  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  was  indicted  in  the  circuit  court  of  Jefferson 
county  for  the  killing  of  Capt.  Thornhill.  A  change  of  venue  was  had 
to  the  county  of  Grainger.  At  August  term,  1866,  of  the  circuit  court 
of  Grainger  county,  he  was  convicted  by  a  jury,  of  murder  in  the  sec- 
ond degree,  and  sentenced  to  15  years'  imprisonment  in  the  peniten- 
tiary. 

A  new  trial  was  moved  for,  which  was  overruled,  and  an  appeal 
taken  to  this  court. 

The  court,  among  other  things  not  excepted  to,  charged  the  jury 
in  substance  as  follows :  "A  soldier  in  the  service  of  the  United  States 
is  bound  to  obey  all  lawful  orders  of  his  superior  officers,  or  officers 
over  him,  and  all  he  may  do  in  obeying  such  lawful  orders  constitutes 
no  offense  as  to  him.  But  an  order,  illegal  in  itself  and  not  justified 
by  the  rules  and  usages  of  war,  or  in  its  substance  being  clearly  ille- 
gal, so  that  a  man  of  ordinary  sense  and  understanding  would  know, 
as  soon  as  he  heard  the  order  read  or  given,  that  such  order  was  illegal, 
would  afford  a  private  no  protection  for  a  crime  committed  under  such 
order,  provided  the  act  with  wdiich  he  may  be  charged  has  all  the  in- 
gredients in  it  which  may  be  necessary  to  constitute  the  same  a  crime 
in  law.  Any  order  given  by  an  officer  to  his  private,  which  does  not 
expressly  and  clearly  show  on  its  face,  or  in  the  body  thereof,  its  own 
illegality,  the  soldier  would  be  bound  to  obey,  and  such  order  w^ould 
be  a  protection  to  him.  No  person  in  the  military  service  has  any  right 
to  commit  a  crime  in  law,  contrary  to  the  rules  and  usages  of  w^ar,  and 
outside  of  the  purposes  thereof ;  and  the  officers  are  all  amenable  for 
all  crimes  thus  committed,  and  the  privates  likewise  are  answerable  to 
the  law  for  crimes  committed  in  obeying  all  orders  illegal  on  their  face 
and  in  their  substance,  when  such  illegality  appears  at  once  to  a  com- 

18  Part  of  the  opinion  is  omitted. 


€4  PERSONS   CRIMINALLY    RESPONSIBLE,    AND    EXEMPTIONS 

nion  mind,  on  hearing  them  read  or  given."     We  think  there  is  no 
error  in  this  charge. 

It  is  a  well-settled  principle  a  soldier  is  not  bound  to  obey  an  illegal 
order.  If  he  does,  and  commits  an  offense,  it  is  no  justification  to  him, 
and  he  is  liable  to  be  proceeded  against  and  punished.  This  principle 
was  settled  in  the  Supreme  Court  of  the  United  States  in  the  case  of 
Mitchell  V.  Harmony,  13  How.  129,  14  L.  Ed.  75,  in  which  it  was  held 
a  military  officer  cannot  rely  on  an  apparently  unlawful  order  of  his 
superior  as  a  justification. 

The  same  principle  was  recognized  and  settled  in  the  Court  of 
King's  Bench,  reported  in  1  Cowp.  180.  In  this  case  a  captain  in  the 
English  navy,  by  orders  of  the  British  admiral,  pulled  down  the  houses 
of  some  suttlers  on  the  coast  of  Novo  Scotia,  who  were  supplying  the 
sailors  with  spirituous  liquors,  and  the  health  of  the  sailors  was  there- 
by much  injured.  The  motive  was  a  laudable  one,  and  done  for  the 
public  service.  The  courts  say  it  was  an  invasion  of  the  rights  of  pri- 
vate property  without  the  authority  of  law,  and  the  officer  who  exe- 
cuted the  order  was  held  liable.  This  being  the  rule  in  civil  causes, 
the  principle  would  be  more  strictly  applied  in  criminal  ones.  No  or- 
der, if  any  was  given,  could  justify  the  killing  of  Capt.  Thornhill,  and 
the  parties  who  did  the  act  are  amenable  to  the  criminal  law.  There 
being  no  error  in  the  charge  of  the  court,  the  question  arises :  Do  the 
facts  in  the  record  sustain  the  verdict  of  the  jury?  And  under  the  rul- 
ings of  this  court  it  is  made  our  duty  in  criminal  causes  to  examine 
the  proof  and  see  if  it  warrants  the  conviction.     *     *     * 

The  proof  does  not  satisfy  us  the, prisoner  aided  or  abetted  in  the 
unlawful  act  of  killing.  A  private  soldier,  when  detailed  by  his  su- 
perior officer,  has  no  discretion.  By  the  rules  of  war  he  is  bound  to 
obey  -the  orders  of  those  in  command.  When  he  enters  the  service, 
unconditional  submission  to  the  lawful  orders  of  his  superior  officers 
is  a  duty  imposed  upon  him  by  his  oath  and  the  articles  of  war.  The 
principle  of  law,  "when  men  are  assembled  for  an  illegal  purpose,  and 
the  commission  of  an  offense  by  any  one  of  the  party  is  the  act  of  the 
whole,"  is  not  applicable  to  this  case.  The  plaintiff  in  error  being  a 
private  soldier,  being  detailed,  was  bound  to  obey  the  lawful  order. 
The  going  to  Richard  Thornhill's  without  a  knowledge  of  the  purpose 
for  which  the  force  was  detailed  was  not  an  illegal  act;  he  had  no 
right  to  inquire  of  the  officer  the  object  and  purpose  of  the  detail,  or 
what  he  had  in  view ;  and,  if  he  was  present,  unless  he  participated  in 
the  killing  by  firing,  or  aided  and  abetted  in  the  act  of  killing,  he  would 
not  be  criminally  responsible.  It  is  stated  as  a  principle  of  law,  in  1 
Hale,  Pleas  of  the  Crown,  444,  and  which  we  recognize  and  approve : 
"Although  if  many  come  upon  an  unlawful  design,  and  one  of  the  com- 
pany kill  the  adverse  party  in  pursuance  of  that  design,  all  are  princi- 
pals, yet  if  many  be  together  upon  a  lawful  account,  and  one  of  the 
company  kill  another  of  an  adverse  party,  without  any  particular  abet- 


JUSTIFICATION — COERCION — MARRIED   WOMEN  65 

ment  of  the  rest  to  this  fact  of  homicide,  they  are  not  all  guilty  that 
are  of  the  company,  but  only  those  that  gave  the  stroke,  or  actually 
abetted  them  to  do  it."  We  forbear  to  comment  further  upon  the  tes- 
timony, as  the  case  will  undergo  another  investigation  before  a  jury. 
We  are  not  satisfied,  from  the  proofs  in  this  record,  with  the  verdict 
of  the  jury. 

The  judgment  will  be  reversed,  and  a  new  trial  awarded. 


IX.  Justification — Coercion — Married   Women  ^* 


REX  V.  HUGHES. 

(Lancaster  Sp.  Assizes,  1813.    2  Lew.  229.) 

Martha  Hughes,  the  wife  of  Patrick  Hughes,  was  indicted  for  forg- 
ing and  uttering  three  £2  Bank  of  England  notes. 

James  Piatt  proved  that  he  went  to  the  shop  of  the  prisoner's  hus- 
band, in  consequence  of  a  conversation  which  he  had  had  some  time  ' 
before  with  the  husband.  The  husband  was  not  present.  The  pris- 
oner beckoned  him  to  go  into  an  inner  room,  into  which  she  fol- 
lowed him,  when  he  told  her  what  her  husband  had  said  to  him. 
They  then  agreed  about  the  business,  and  the  witness  bought  of  the 
prisoner  three  12  notes  at  £1  4s.  each. 

The  witness  paid  her  four  £1  notes  and  was  to  receive  8s.  in  change. 
When  he  was  putting  the  notes  into  his  pocketbook,  and  before  he 
received  the  change,  the  husband  put  his  head  into  the  room  and 
looked  in,  but  did  not  come  in  or  interfere  in  the  business,  further 
than  by  saying,  "Get  on  with  you !"  When  the  witness  and  the  pris- 
oner returned  into  the  shop,  the  husband  was  there  and  the  pris- 
oner gave  him  the  change,  and  both  the  prisoner  and  the  husband 
cautioned  him  to  be  careful. 

On  these  circumstances  being  proved.  Cross,  for  the  prisoner,  ob- 
jected that  they  clearly  established  that  she  acted  under  the  coercion 
of  her  husband.  Supposing  both  husband  and  wife  on  their  trial, 
this  evidence  would  be  sufficient  to  convict  him;  and  he  submitted 
that,  if  so,  she  must  in  this  case  be  acquitted.  He  cited  2  East's 
P.  C.  259:  "If  a  wife  be  guilty  of  larceny  in  company  with  her  hus- 
band, both  of  them  may  be  indicted ;  and  if  the  husband  be  convicted, 
the  wife  shall  be  acquitted."  1  Hale,  46;  Kelynge,  Z7  \  "But  if  the 
husband  be  acquitted,  and  it  appear  that  the  felony  were  by  her  own 

20  For  a  discussion  of  principles,  see  Clarlc  on  Criminal  Law  (3d  Ed.)  §  40. 
MiKELL  Cas.Ck.L. — 5 


66  PERSONS    CRIMINALLY    RESPONSIBLE,    AND    EXEMPTIONS 

voluntary  act  (by  which  must  be  understood  that  her  husband,  if 
present,  had  no  knowledge  of  or  participation  in  the  fact),  she  may, 
upon  the  same  indictment,  be  convicted,  for  the  charge  is  joint  and 
several."  The  acquittal  or  conviction,  therefore,  of  the  husband,  reg- 
ulates that  of  the  wife.    Here  the  husband  might  have  been  convicted. 

Thompson,  B.  (stopping  Park  and  Rain).  I  am  very  clear  as  to 
the  law  on  this  point. 

The  law,  out  of  tenderness  to  the  wife,  if  a  felony  be  committed 
in  the  presence  of  the  husband,  raises  a  presumption  prima  facie, 
and  prima  facie  only  (as  is  strongly  laid  down  by  Lord  Hale),  that 
it  was  done  under  his  coercion.  But  it  is  absolutely  necessary  that 
the  husband  should  be  actually  present  and  taking  a  part  in  the 
transaction. 

Here  it  is  entirely  the  act  of  the  wife.  It  is,  indeed,  in  consequence 
of  a  communication  previously  with  the  husband  that  the  witness  ap- 
plies to  the  wife;  but  she  is  ready  to  deal,  and  has  on  her  person 
the  articles  which  she  delivers  to  the  witness. 

There  was  a  putting  ofif  before  the  husband  came;  and  it  was 
sufficient  if,  before  that  time,  she  did  that  which  was  necessary  to 
complete  the  crime.  The  coercion  must  be  at  the  time  of  the  act 
done,  and  then  the  law,  out  of  tenderness,  refers  it,  prima  facie,  to 
his  coercion;  but,  when  it  has  been  completed  in  his  absence,  no 
subsequent  act  of  his  (although  it  might  possibly  make  him  an  ac- 
cessory to  the  felony  of  his  wife)  can  be  referred  to  what  was  done 
in  his  absence. 

Objection  overruled. 


X.  Justification — Necessity 


21 


UNITED  STATES  v.  ASHTON. 
(Circuit  Court  of  the  United  States,  1834.    2  Sumn.  13  Fed.  Cas.  No.  14,470.) 

Indictment  against  the  defendants  for  an  endeavor  to  commit  a 
revolt  on  board  the  ship  Merrimack,  of  Boston,  on  the  high  seas. 
Plea,  not  guilty. 

At  the  trial  it  appeared  that  the  ship  sailed  from  Boston  on  Sat- 
urday, 23d  of  August,  1834,  on  a  voyage  to  Rio  Janeiro,  under  the 
command  of  Capt.'  Eldridge.  She  was  then  in  a  leaky  condition,  and 
some  efforts  had  been  made  by  the  captain  to  conceal  the  extent  of 
the  leakage  from  the  crew  at  the  time  of  their  shipment  and  coming 

21  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §  41. 


JUSTIFICATION — NECESSITY  C7 

on  board.  The  ship  was  29  years  old.  The  crew,  on  discovcrhng  the 
leak  in  going  out  of  port,  expressed  a  wish  to  the  captain  to  return 
and  have  repairs  made.  The  captain  declined,  but  said  if  the  leak  in- 
creased he  would  return.  On  Wednesday,  the  27th  of  August,  the 
vessel  encountered  a  gale  and  strained  very  much ;  and  the  crew 
were  up  all  the  night  pumping,  and  were  much  exhausted.  The  gale 
still  continued,  with  every  appearance  of  a  continuance.  The  crew 
then  conversed  together,  and  went  to  the  captain  and  requested  him 
to  return  to  Boston  to  repair,  and  expressed  a  firm  belief  that  the 
ship  was  unseaworthy  and  that  they  were  all  in  imminent  danger  of 
their  lives.  The  captain  declined,  but  proposed  that  they  should  keep 
on,  and,  if  necessary,  he  would  stop  at  the  Western  Islands  for  re- 
pairs. The  crew  insisted  that  he  ought  to  return  back  to  Boston, 
and  that  the  hazard  of  proceeding  on  the  voyage  was  imminent ;  and 
then,  finding  that  the  captain  persisted  in  going  on  the  voyage,  de- 
claring that  he  thought  the  vessel  seaworthy,  they  refused  to  do 
duty  any  further,  and  seceded,  and  remained  below  several  hours, 
during  which  time  the  gale  increased,  and  the  ship  was  in  great 
danger.  The  captain,  at  length,  in  order  to  induce  the  crew  to  re- 
turn to  duty,  agreed  to  return  to  Boston ;  and  accordingly  he  wore 
ship  and  returned  to  Boston,  where  he  arrived  on  the  ninth  day  after 
her  departure.  The  crew  at  all  other  times  during  the  voyage  and 
in  all  other  respects  conducted  themselves  unexceptionably.  *  *  * 
Story,  Circuit  Judge.^^  I  do  not  think  tliat  the  act  for  the  govern- 
ment and  regulation  of  seamen  in  the  merchants'  service  (Act  July  20, 
1790,  c.  29,  1  Stat.  131)  has  any  bearing  on  the  present  case.  The 
third  section  of  that  act  merely  provides  for  the  case  where  the  mate 
and  a  majority  of  the  crew  of  a  vessel  bound  on  a  foreign  voyage, 
after  the  voyage  is  begun  and  before  the  vessel  shall  have  left  the  land, 
shall  discover  the  vessel  to  be  too  leaky  or  otherwise  unfit  to  proceed 
on  the  voyage,  and  under  such  circumstances  it  makes  it  the  duty 
of  the  master  to  return  to  port.  It  does  not  in  the  slightest  manner 
trench  upon  the  general  rights  and  duties  of  the  seamen  under  the 
maritime  law,  but  merely  imposes  an  absolute  duty  on  the  master  in 
the  case  specified.  All  other  cases  and  circumstances  remain,  there- 
fore, as  they  were  before,  to  be  governed  by  the  general  principles 
of  law.  In  the  present  case  the  combination  to  resist  the  authority 
of  the  master  is  clearly  established,  and  unless  the  seamen  were,  by 
the  circumstances,  justified  in  compelling  the  master  to  return  home, 
the  offense  charged  in  the  indictment  is  fully  made  out;  and  the 
onus  is  on  the  seamen  to  establish  the  justification.  If  the  ship  was 
at  the  time  clearly  seaworthy  and  fit  for  the  voyage,  whether  the 
seamen  acted  by  fraud,  or  by  mistake,  or  upon  a  fair,  but  false,  judg- 
ment of  the  facts,  it  seems  to  me  the  offense  was  committed.     If, 

22  TJie  statement  of  facts  is  abridged. 


68  PERSONS   CRIMINALLY   RESrONSIBLE,    AND    EXEMPTIONS 

on  the  other  hand,  the  ship  was  at  the  time  clearly  unseaworthy  and 
unfit  for  the  voyage,  they  were  fully  justified  in  insisting  upon  her 
return  home,  and  were  guilty  of  no  offense.  The  law  deems  the 
lives  of  all  persons  far  more  valuable  than  any  property,  and  will 
not  permit  a  master,  under  color  of  his  acknowledged  authority  on 
board  of  the  ship,  from  rashness,  or  passion,  or  ignorance,  to  hazard 
the  lives  of  the  crew  in  a  crazy  ship,  or  compel  them  to  encounter 
risks  and  perform  duties  which  are  so  imminent  and  overwhelming 
that  they  can  escape  only  by  the  most  extraordinary  chances,  and, 
as  it  were,  by  miraculous  exertions.  If  he  should  order  them  into 
a  boat  on  the  ocean,  at  a  time  when  they  could  scarcely  fail  of  being 
swamped  or  foundered,  they  would  not  be  bound  to  obey.  His  com- 
mands, to  be  entitled  to  obedience,  must,  under  the  circumstances, 
be  reasonable.  The  proposition  cannot  for  a  moment  be  maintained 
that  the  crew  are  bound  to  proceed  on  the  voyage  in  an  unseaworthy 
and  rotten  ship,  at  the  imminent  hazard  of  their  lives,  merely  because 
the  master  and  officers  choose  in  their  rashness  of  judgment  to  pro- 
ceed. 

It  is  true  that  in  all  cases  of  doubt  the  judgment  of  the  master  and 
officers  ought  to  have  great  weight,  and  from  their  superior  intelli- 
gence, ability,  and  skill  it  may  be  relied  on  with  far  more  confidence 
than  that  of  the  crew.  They  are  embarked  in  the  same  common 
enterprise  and  risks,  and  it  cannot  be  ordinarily  presumed  that  they 
will  hazard  their  own  lives  in  a  vehicle  which  is  really  unfit  for  the 
voyage.  Still,  if  the  case  does  occur,  if  they  will  insist  on  proceeding, 
no  matter  at  what  hazard  to  life,  and  the  ship  is  unseaworthy,  I 
am  clear  that  the  crew  have  a  right  to  resist,  and  to  refuse  obedience. 
It  is  a  case  of  justifiable  self-defense  against  an  undue  exercise  of 
power.  Neither  of  these  cases  is  of  any  real  difficulty.  But  the  case 
of  difficulty  is  this :  Suppose  the  ship  to  be  in  that  state  in  which  the 
presumption  of  apparent  unseaworthiness  really  arises,  and  the  crew 
bona  fide  act  upon  that  presumption,  and  the  jury  should  be  of 
opinion  that  they  acted  justifiably  upon  that  presumption  at  the  time ; 
and  suppose  upon  the  trial  it  should  turn  out  (as  in  the  present  case 
it  may)  that  there  is  real  doubt  whether  the  ship  be  seaworthy  or  not, 
or  upon  the  evidence  the  case  is  nearly  balanced  in  the  conflict  of 
credible,  as  well  as  competent,  testimony,  and  the  jury  should  on  the 
whole  deem  the  preponderance  of  evidence  just  enough  to  turn  the 
scale  in  favor  of  seaworthiness,  but  not  to  place  it  entirely  beyond 
doubt ;  I  ask  whether,  under  such  circumstances,  the  crew  ought 
to  be  convicted  of  the  ofTcnse  charged,  having  acted  upon  their  best 
judgment  fairly,  and  in  a  case  where  respectable,  intelligent,  and  im- 
partial witnesses  should  assert  that  they  should  have  done  the  same, 
and  where  even  the  jury  themselves  might  adopt  the  same  opinion, 
although  'there  might  be  an  error  in  the  fact  of  seaworthiness,  as 
established  at  the  trial  ?    I  have  great  difficulty  in  coming  to  the  con- 


JUSTIPICATION — NECESSITY  G9 

elusion  that  under  such  circumstances  the  crew  were  guilty  of  the 
oiifense  charged. 

I  am  aware  of  the  dangers  of  not  upholding  with  a  steady  hand  the 
authority  of  the  master ;  but  I  am  not  the  less  aware  of  the  necessity 
of  having  a  just  and  tender  regard  for  life.  Seamen,  when  they  con- 
tract for  a  voyage,  do  not  contract  to  hazard  their  lives  against  all 
perils  which  the  master  may  choose  they  shall  encounter.  They  con- 
tract only  to  do  their  duty  and  meet  the  ordinary  perils,  and  to  obey 
reasonable  orders.  The  relation  between  master  and  seaman  is  cre- 
ated by  the  contract ;  but  that  relation,  when  created,  is  governed  by 
the  gejieral  principles  of  law.  Unlimited  submission  does  not  belong 
to  that  relation.  I  have  great  repugnance  to  creating  constructive 
offenses,  and  especially  where  there  is  perfect  integrity  of  intention. 
I  am  aware  that  in  some  cases  crimes  may  be  committed  independ- 
ently of  any  supposed  intention  to  do  wrong.  But  in  most  cases, 
and  I  think  in  a  case  of  this  nature,  the  intention  and  the  act  must 
both  concur  to  constitute  an  offense.  There  are  cases  even  of  the 
highest  crimes,  as  of  homicide,  where  an  honest  and  innocent  mistake 
in  killing  another,  under  circumstances  of  a  reasonable  presumption, 
though  a  mistaken  one,  that  the  party  killed  intended  to  kill  the  other 
party,  when  the  latter  will  be  excused  by  law. 

I  have  had  this  subject  a  good  deal  in  my  thoughts  during  the 
progress  of  this  trial  (and  the  point  is  certainly  a  new  one);  and 
the  strong  inclination  of  my  opinion  at  present  is,  subject  to  be  chang- 
ed by  any  argument  hereafter  urged,  that  the  defendants  ought  not 
to  be  found  guilty,  if  they  acted  bona  fide  upon  reasonable  grounds 
of  belief,  that  the  ship  was  unseaworthy,  and  if  the  jury,  from  all 
the  circumstances,  are  doubtful  whether  the  ship  was  seaworthy,  or 
even  in  a  measuring  cast  should  incline  to  believe  the  ship  seaworthy. 
If  she  was  clearly  seaworthy  beyond  reasonable  doubt,  then  the  de- 
fendants ought  to  be  convicted,  for  the  facts  of  the  combination  and 
resistance  are  admitted. 

Mem. — Upon  these  suggestions  of  the  court,  the  district  attorney 
said  that  his  own  opinion  coincided  with  that  of  the  court,  and  that 
he  would  enter  a  nolle  prosequi,  but  he  had  thought  it  his  duty  to 
bring  the  case  before  the  court;  and  the  court  said  that  the  case 
was  very  properly  brought  before  it  for  decision. 


70  PARTIES   CONCERNED  IN  THE   COMMISSION   OF   CRIMES 


PARTIES  CONCERNED  IN  THE  COMMISSION  OF 

CRIMES 

I.  Principals  in  the  First  Degree  * 


REGINA  V.  MANLEY. 
(Somerset  Lent  Assizes,  1844.    1  Cox,  C.  C.  104.) 

Indictment  for  larceny. 

The  facts,  as  proved  by  the  prosecution,  were  that  the  prisoner  was 
an  apprentice  of  the  prosecutor ;  that  he  had  induced  the  son  of  the 
prosecutor,  a  child  of  the  age  of  nine  years,  to  take  money  from  his 
father's  till,  and  give  to  him.  On  cross-examination,  it  further  appear- 
ed that  the  child  had  done  the  like  for  other  boys. 

Cox,  for  the  prisoner,  submitted  that  the  evidence  did  not  sustain 
the  indictment.  The  prisoner  was  charged  with  stealing  money  as 
principal.  The  evidence  showed  him  to  be  either  an  accessory  or  a 
receiver.  If  an  offense  be  committed  through  the  medium  of  an  in- 
nocent agent,  the  employer,  though  absent  when  the  act  was  done,  is 
answerable  as  a  principal.  R.  v.  Giles,  1  Moody,  C.  C.  166;  Reg.  v. 
Michael,  2  Moody,  C.  C.  120,  9  Car.  &  P.  356.  But  if  the  instrument 
be  aware  of  the  consequences  of  his  act,  he  is  the  principal  in  the  first 
degree;  and  the  employer,  if  he  be  absent  when  the  act  is  committed, 
is  an  accessory  before  the  fact.  R.  v.  Stewart,  R.  &  R.  363.  In  this 
case  the  evidence  had  shown  beyond  doubt  that  the  child  was  of  the 
age  of  discretion  and  fully  aware  of  the  consequences  of  his  act. 

WiGHTMAN,  J.  What  do  you  mean  by  an  innocent  agent,  if  this 
child  be  not  one  ? 

Cox :  An  agent  who,  from  age,  defect  of  understanding,  ignorance 
of  the  fact,  or  other  cause,  cannot  be  particeps  criminis. 

WiGHTMAN,  J.  But  though  an  act  done  through  the  medium  of 
an  innocent  agent  makes  the  prisoner  a  principal,  how  do  you  show 
that  he  is  not  a  principal,  where  the  act  is  done  through  the  medium 
of  a  responsible  agent? 

Cox :  Because,  if  the  agent  be  responsible,  he  becomes  principal ; 
and  to  constitute  a  principal  he  must  be  the  actor  or  actual  perpetrator 
of  the  fact,  or  cognizant  of  the  crime,  and  near  enough  to  render  as- 
sistance. Though  there  be  a  previous  concerted  plan,  those  not  pres- 
ent or  near  enough  to  aid  at  the  time  when  the  offense  is  committed 

1  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §  46. 


rRINCIPALS    IN   THE   SECOND   DEGREE  71 

are  not  principals,  but  accessories  before  the  act.  See  cases  cited  Arch. 
(9th  Ed.)  p.  4. 

WiGHTMAN,  J.  It  is  a  question  for  the  jury,  if  the  child  was  an 
innocent  agent. 

WiGHTMAN,  J.  (to  the  jury).  Apart  from  the  consideration  of  the 
guilt  or  innocence  of  the  prisoner  generally,  if  you  believe  the  story 
told  by  the  child,  you  will  have  to  determine  whether  the  child  was 
an  innocent  agent  in  this  transaction — that  is,  whether  he  knew  that 
he  was  doing  wrong,  or  was  acting  altogether  unconsciously  of  guilt, 
and  entirely  at  the  dictation  of  the  prisoner;  for,  if  you  should  be 
of  opinion  that  he  was  not  an  innocent  agent,  you  cannot  find  the 
prisoner  guilty  as  a  principal  under  this  indictment. 

Verdict — Not  guilty. 


II.  Principals  in  the  Second  Degree 


THORNTON  v.  STATE. 

(Supreme  Court  of  Georgia,  1903.     119  Ga.  437,  46  S.  E.  640.) 

Fish,  P.  j,3  *  *  *  jf  Thornton  had  given  his  pistol  to  Amos, 
with  instructions  or  advice  to  kill  Sam  Gordon  with  it,  and  Amos  had 
done  so  when  Thornton  was  present,  and  nothing  more  had  appeared, 
then  Thornton  would  have  been  guilty  as  principal  in  the  second 
degree.  The  evidence  for  the  state  shows,  however,  that  when  Thorn- 
ton loaned  his  pistol  to  Amos  he  told,  or  advised,  him  to  kill  Gordon 
with  it,  if  he  should  again  rob  Amos  at  cards.  His  advice  or  in- 
struction to  kill  Gordon  was,  therefore,  conditional,  or  dependent 
upon  the  event  that  Gordon  should  again  rob  Amos  at  cards.  Even 
granting  that  there  was  enough  in  the  evidence  to  authorize  the  jury 
to  infer  that  Amos  and  Gordon  had,  subsequently  to  the  loan  of  the 
pistol,  engaged  in  playing  cards,  we  think  there  is  nothing  in  the  evi- 
dence from  which  the  jury  could  fairly  infer  that  Gordon  had  robbed 
Amos  in  such  a  game,  or  that  the  killing  was  in  consequence  of  such 
robbery.  Of  course,  we  do  not  use  the  words  "robbed"  and  "rob- 
bery" here  in  their  limited  legal  sense,  but  as  including  cheating  in 
a  game  of  cards  played  for  money.  The  evidence  shows  that  Amos 
stated  to  Gordon  that  he  owed  him  a  dime.  This  Gordon  denied,  but 
paid  it,  saying  at  the  time  that  he  would  make  some  of  them  shoot 
him;   whereupon  Amos  immediately  shot  and  killed  him. 

'     2  For  a  discussion  of  principles,  see  Clark  ou  Criiuiual  Law  (3d  Ed.)  §  47. 
8  Part  of  the  opinion  is  omitted. 


72  PARTIES   CONCERNED   IN    THE   COMMISSION    OF   CRIMES 

From  these  facts  we  do  not  think  it  can  be  successfully  contended 
that  the  evidence  shows  that,  at  the  time  of  the  homicide,  there  was 
m  the  mind  of  Thornton  the  same  criminal  intent  and  felonious  de- 
sign that  was  in  the  mind  of  Amos.  The  common  intent  and  purpose 
in  the  minds  of  both,  at  the  time  that  Thornton  furnished  Amos  with 
the  pistol,  was  that  Amos  should  kill  Gordon  if  the  latter  should  again 
rob  him  at  cards.  There  is  nothing  in  the  evidence  to  show,  or 
to  authorize  the  jury  in  finding,  that  Thornton  ever  had  any  other 
criminal  intent.  If  Amos,  after  procuring  the  pistol  from  Thornton, 
had  casually  met  Gordon  and  immediately  shot  him,  without  any  prov- 
ocation whatever,  certainly  Thornton  would  not  have  been  guilty  of 
murder  as  a  principal  in  the  second  degree,  although  he  had  been 
present  on  the  occasion  of  the  homicide,  if  he  did  nothing  then  to  aid 
or  abet  the  commission  of  the  crime.  It  follows  from  what  we  have 
said  that  the  court  should  have  granted  a  new  trial,  upon  the  ground 
that  there  was  no  evidence  to  support  the  verdict. 

Judgment  reversed.  All  the  Justices  concur,  except  Simmons,  C. 
J,,  absent. 


MERCERSMITH  v.  STATE. 

(Court  of  Appeals  of  Texas,  ISSO.    S  Tex.  App.  211.) 

White,  P.  J.*  In  our  opinion  this  cause  must  be  reversed,  because 
the  court  failed  to  submit  the  law  applicable  to  the  vital  issues  neces- 
sarily raised  by  the  evidence  elicited  on  the  trial.  Substantially  stat- 
ed, the  facts  in  brief  are  that  one  George  Purtell  and  the  defendant 
were  found  by  deceased  inside  his  house  sometime  about  11  o'clock 
at  night.  Deceased  and  his  wife  and  stepdaughter  were  returning 
from  prayer  meeting,  when,  near  his  house,  they  heard  the  cries 
and  screams  of  the  three  children,  who  had  been  left  at  home  during 
their  absence.  Deceased  hurried  on  to  see  what  the  matter  was,  when, 
stepping  inside  his  door,  he  was  immediately  fired  upon  by  Purtell. 
After  the  second  shot,  deceased  fled,  and  Purtell  pursued  him  into 
the  yard  and  fired  a  third  shot,  or  fourth,  according  to  some  of  the  > 
witnesses,  which  penetrated  about  the  knee  joint,  severing  the  femoral 
artery,  and  from  which  wound  he  died  some  14  days  afterwards. 

At  the  time  of  the  shooting  this  appellant  was  lying  upon  a  pallet 
upon  which  the  three  children  slept,  and  had  the  eldest,  a  3^oung 
girl  between  10  and  12  years  of  age,  in  his  arms,  with  her  clothes  up, 
and,  as  she  says,  was  choking  her.  She  and  the  other  children  were 
crying  and  hallooing.  The  door  of  the  house  had  been  broken  down 
and  torn  from  its  hinges  by  Purtell  and  defendant  when  they  effected 
their  entrance  into  the  house,  and  immediately  after  the  entry  defend- 

*  The  statement  of  facts  is  omitted. 


PKINCIPALS   IN    THE    SECOND   DEGREE  73 

ant  laid  down  upon  the  pallet  with  the  children,  whilst  Purtell  remain- 
ed standiiig  near  the  doorway.  But  a  very  few  seconds  could  have 
elapsed  from  their  entry  until  the  appearance  of  Henderson,  the  de- 
ceased, and  the  shooting  as  above  detailed.  There  was  evidence  tend- 
ing to  show  that  these  parties  had  been  at  the  house  before  to  see 
the  girls  (the  one  defendant  had  in  his  arms  when  discovered,  and 
the  stepdaughter  who  had  gone  to  prayer  meeting) ;  the  intimation 
being  clear  that  their  object  on  these  previous  visits  was  carnal  in- 
tercourse. Whether  such  carnal  intercourse  had  taken  place  previous- 
ly is  not  made  manifest.  Other  evidence  tended  to  show  that  this 
defendant  was  quite  drunk ;  but  after  the  shooting  he  got  up  and 
joined  Purtell,  when  they  both  mounted  their  horses  and  went  off  to- 
gether. 

In  a  charge  characterized  by  great  precision  for  its  declaration 
of  the  principles  of  law  relative  to  murder  of  the  first  and  second 
degrees,  the  court  further  instructed  the  jury  fully  with  regard  to 
the  general  principles  of  law  as  enunciated  in  the  Code  with  regard 
to  joint  or  principal  offenders  engaged  in  a  common  purpose  and 
actuated  by  a  common  design  in  the  accomplishment  of  an  unlaw- 
ful act,  and  their  reciprocal  liability  for  the  acts  of  each  other.  Pen. 
Code  1879,  arts.  74-76,  78.  But  the  charge  failed  to  draw  the  dis- 
tinction which  the  law  makes  between  cases  of  combination  and  con- 
spiracy to  do  an  unlawful  act  and  the  liability  of  one  and  all  for  the 
acts  and  deeds  of  all  when  the  common  purpose  might  be  to  do  an  act 
not  in  itself  unlawful,  and  in  the  execution  of  which  one  of  the  par- 
ties engaged  committed  a  felony. 

In  the  case  at  bar  there  would  be  a  marked  distinction  as  to  the 
liability  of  the  parties  when  tested  by  what  was  the  common  pur- 
pose which  united  them  together  at  the  time  Purtell  alone  engaged 
in  the  shooting  which   resulted  in  the  homicide. 

If  the  common  purpose  was  to  commit  an  unlawful  act — as,  for  in- 
stance, burglary — which  would  be  evidenced  by  the  fact  that  they 
broke  down  the  door  and  forcibly  entered  the  house  at  night,  or  that 
they  broke  down  the  door  and  forcibly  entered  the  house  to  commit 
rape  (Pen.  Code  1879,  art.  704),  then,  manifestly,  the  original  purpose 
and  common  design  being  to  commit  a  felony,  any  act  done  by  either 
one  of  the  parties  whilst  engaged  in  the  unlawful  act  would  be 
imputed  and  attach  its  criminality  to  the  other,  and  make  each  liable 
jointly  for  whatever  either  may  have  done  in  the  general  purview 
of  the  common  design  during  the  execution  of  the  original  unlawful 
enterprise.  But  if  the  common  undertaking  was  in  itself  not  un- 
lawful— as,  for  instance,  if  the  parties  entered  the  house,  but  in  the 
entry  did  not  intend  to  commit  burglary  or  any  other  felony  or  un- 
lawful act,  but  their  object  was  alone  to  have  carnal  intercourse 
with  the  girls,  with  whom  they  had  before  had  such  intercourse;  and 
whilst  the  defendant  was  in  the  act  of  accomplishing  this  object  his 


74  PARTIES   CONCERNED    IN   THE    COMMISSION    OF*  CRIMES 

companion,  Purtell,  without  his  knowledge  or  consent,  shot  and  killed 
Henderson — in  such  event,  even  though  the  shooting  might  have 
been  done  to  enable  both  to  evade  discovery  and  effect  their  escape 
from  the  house,  the  defendant  would  not  be  liable  for  the  homicide. 

It  is  the  lawfulness  or  criminality  of  the  purpose  and  common 
design  which  gives  scope  and  character  to  acts  committed  in  con- 
nection with  its  perpetration.  To  constitute  principals  in  an  offense, 
the  purpose  must  be  unlawful.  "For  if  the  original  intention  was 
lawful  and  prosecuted  by  lawful  means,  and  opposition  is  made  by 
others,  and  one  of  the  opposing  party  is  killed  in  the  struggle,  in 
that  case  the  person  actually  killing  may  be  guilty  of  murder  or  man- 
slaughter, as  circumstances  may  vary  the  case,  but  the  other  persons 
who  are  present,  and  who  do  not  actually  aid  and  abet,  are  not  guilty 
as  principals ;  for  they  assembled  for  another  purpose,  which  was 
lawful,  and  consequently  the  guilt  of  the  person  actually  killing  can- 
not by  any  fiction  of  law  be  carried  against  them  beyond  their  original 
intention."  Fost.  354 ;  2  Hawk.  P.  C.  c.  29,  §  9 ;  2  Archb.  Cr.  Pr. 
&  PI.  (6th  Ed.)  251-257,  and  note. 

But  Mr.  Wharton  says :  "It  should  be  observed,  however,  that, 
while  the  parties  are  responsible  for  collateral  acts  growing  out  of 
the  general  design,  they  are  not  for  independent  acts  growing  out 
of  the  particular  malice  of  individuals.  Thus,  if  one  of  the  party  of 
his  own  head  turn  aside  to  commit  a  felony  foreign  to  the  original 
design,  his  companions  do  not  participate  in  his  guilt."  Whart.  on 
Horn.  §  202.  Yet,  "where  two  persons  go  out  for  the  common 
purpose  of  robbing  a  third  person,  and  one  of  them,  in  pursuit  of  such 
common  purpose,  kill  such  third  person  under  such  circumstances 
as  to  make  it  murder  in  him  who  does  the  act,  then  it  is  murder  in 
the  other."  Id.  §  338;  Ruloff  v.  People,  45  N.  Y.  213;  Green  v. 
State,  13  Mo.  3S2 ;  1  Bishop's  Cr.  Law  (4th  Ed.)  §  435;  Hanna 
V.  People,  86  111.  243. 

Nor  is  it  necessary  that  the  common  guilty  purpose  of  resisting 
to  the  death  any  person  who  should  endeavor  to  apprehend  them 
must  have  been  formed  when  the  parties  went  out  w-ith  the  common 
design  of  committing  the  unlawful  act,  to  render  all  principals  in  a 
murder  by  one  of  them  perpetrated  whilst  making  such  resistance. 
Ruloff  V.  People,  45  N.  Y.  213;  State  v.  Nash,  7  Iowa,  350;  Moody 
V.  State,  6  Cold.  (Tenn.)  299. 

In  the  case  of  People  v.  Knapp,  26  Mich.  112,  it  was  held  "that 
where  parties  combine  to  commit  an  offense,  and  a  homicide  is  com- 
mitted by  part  of  them  in  an  attempt  to  escape,  one  who  did  not 
consent  and  was  not  privy  in  fact  to  the  homicide  cannot  be  held 
responsible  by  reason  of  the  original  combination.  There  can  be  no 
responsibility  against  one  who  is  not  himself  engaged  in  the  acts 
of  his  associates,  unless  it  is  within  the  scope  of  the  combination  to 
which  he  was  a  party,  and  thus  authorized  as  his  joint  act." 


PRINCIPALS    IN    THE    SECOND   DEGREE  T3 

It  is  unnecessary  that  we  should  discuss  the  other  questions  in 
the  case. 

The  judgment  of  the  court  below  will  be  reversed,  in  order  that 
upon  another  trial  the  court  may  submit  the  principles  of  law  ap- 
plicable to  the  issues  as  we  have  presented  them  in  the  foregoing 
opinion. 

Reversed  and  remanded. 


STATE  V.  ALLEN. 

(Supreme  Court  of  Errors  of  Counecticut,  1S79.     47  Corui.  121.) 

Indictment  for  murder  in  the  Superior  Court  for  Hartford  county. 
The  prisoner  was  indicted  with  Harry  Hamlin  and  John  H.  Davis 
for  the  murder  of  Welles  Shipman,  a  watchman  at  the  state  prison; 
the  murder  having  been  committed  in  an  attempt  of  the  defendant 
and  Hamlin,  who  were  convicts,  to  escape  from  the  prison.  The 
jury  found  a  verdict  of  murder  in  the  first  degree.  The  defendant 
thereupon  moved  for  a  new  trial  for  error  in  the  rulings  and  charge 
of  the  court,  and  also  filed  a  motion  in  error. 

BeardslEy,  j,5  *  *  *  fl-^g  motion  for  a  new  trial  shows  that 
upon  the  trial  it  was  claimed  by  the  state  that  the  accused  and  one  Hen- 
ry Hamlin,  both  of  whom  were  lawfully  confined  in  the  state  prison, 
conspired  to  escape  from  such  confinement,  and  to  use  all  means  which 
might  become  necessary  to  effect  such  escape,  even  to  the  taking  of 
the  life  of  any  one  who  might  oppose  them,  should  it  become  neces- 
sary to  do  so  in  order  to  overcome  such  opposition;  that  in  pursu- 
ance of  such  combination  they  provided  themselves  with  two  loaded 
revolver  pistols,  one  a  seven-shooter,  and  the  other  a  four-shooter, 
and  with  handcuffs  and  a  gag,  and  on  the  evening  of  September  1, 
1877,  escaped  from  their  cells  and  secreted  themselves  in  the  hall  of 
the  prison,  where  they  were  discovered  by  Welles  Shipman,  an  armed 
night  watchman  of  the  prison,  and  that  thereupon  they  both  fired  at 
Shipman.  who  was  wounded  by  one  of  the  shots,  and  died  from  such 
wound  on  the  next  day;  and  that  after  Shipman  was  wounded  he 
ran  towards  the  alarm  bell,  pursued  by  the  accused  and  Hamlin,  who 
overtook  him,  when  he  sank  insensible  upon  the  corridor,  and  was 
then  handcuffed  and  gagged  by  them;  that  Allen  then  went  to  his 
cell  about  150  feet  distant,  leaving  Hamlin  with  Shipman,  where  he 
was  discovered  and  fired  at  by  the  guard  of  the  prison;  and  that 
thereupon  Hamlin  went  to  the  cell  of  Allen,  and  that  both  then  broke 
into  the  attic  and  were  taken  the  next  morning.  The  state  claimed 
that  Shipman  was  shot  before  he  was  handcuffed. 

It  was  claimed  by  the  defense  that,  if  there  was  any  conspiracy 

6  Tlie  statement  of  facts  is  abridged  and  part  of  ttie  opinion  is  omitted- 


76  PARTIES   CONCEKNED   IN   THE    COMMISSION    OF   CRIMES 

between  the  accused  and  Hamlin,  it  was  merely  to  bribe  an  officer 
of  the  prison  to  permit  them  to  escape,  and  that  whatever  was  done 
after  Shipman  discovered  the  accused  and  Hamlin  was  not  in  pur- 
suance of  any  plan  or  conspiracy,  and  that  immediately  after  Ship- 
man  was  handcuffed  and  gagged  Allen  abandoned  the  enterprise  and 
went  to  his  cell,  and  that  Shipman  was  afterwards  shot  by  Hamlin 
alone.     *     *     * 

The  court  charged  the  jury  as  follows:  "If  the  jury  shall  find  that 
Hamlin  and  Allen,  at  some  time  previous  to  the  homicide,  made  up 
their  minds  in  concert  to  break  the  state  prison  and  escape  therefrom 
at  all  hazard,  and  knowing  that  the  enterprise  would  be  a  dangerous 
one  and  expose  them  to  be  killed  by  the  armed  night  watchman  of 
the  prison,  should  they  be  discovered  in  making  the  attempt,  willfully, 
deliberately,  and  premeditatedly  determined  to  arm  themselves  with 
deadly  weapons,  and  kill  whatever  watchman  should  oppose  them  in 
their  attempt,  and  if  the  jury  should  further  find  that  in  pursuance 
of  such  design  they  armed  themselves  with  loaded  revolvers  to  carry 
their  original  purpose  into  execution,  and  while  engaged  in  efforts  to 
escape  from  the  prison  were  discovered  by  the  watchman,  Shipman, 
the  deceased,  and  in  the  scuffle  which  ensued  he  was  willfully  killed 
by  Hamlin  or  Allen  while  they  were  acting  in  concert  and  in  pursu- 
ance of  their  original  purpose  so  to  do  in  just  such  an  emergency  as 
they  now  found  themselves  in,  then  Hamlin  and  Allen  are  both  guilty 
of  murder  in  the  first  degree.  And  in  the  opinion  of  the  court  Allen 
would  be  guilty  of  murder  in  the  first  degree,  if,  in  the  state  of  things 
just  described,  he  in  fact  abandoned,  just  before  the  fatal  shot  was 
fired  by  Hamlin,  all  further  attempt  to  escape  from  the  prison,  and 
the  infliction  of  further  violence  upon  the  person  of  Shipman,  with- 
out informing  Hamlin  by  word  or  deed  that  he  had  so  done,  and  Ham- 
lin, ignorant  of  the  fact,  shortly  after  fired  the  fatal  shot  in  pursu- 
ance of  and  in  accordance  with  the  purpose  of  the  parties  down  to 
the  time  of  the  abandonment." 

We  do  not  think  that  the  objection  made  by  the  defense  to  this 
part  of  the  charge  is  well  founded.  Under  such  circumstances,  Al- 
len's so-called  abandonment  would  be  but  an  operation  of  the  mind 
— a  secret  change  of  purpose.  Doing  nothing  by  word  or  deed  to  in- 
form his  co-conspirator  of  such  change  of  purpose,  the  reasonable  in- 
ference would  be  that  he  did  not  intend  to  inform  him  of  it,  and 
thus  he  would  be  intentionally  encouraging  and  stimulating  him  to 
the  commission  of  the  homicide  by  his  supposed  co-operation  with 
him.  Such  intent  not  to  inform  Hamlin  of  his  change  of  purpose 
would,  under  the  circumstances,  be  decisive  of  his  guilt. 

But  the  charge  proceeds :  "In  other  words,  if  during  the  fatal  en- 
counter with  deadly  weapons,  in  the  state  of  things  just  described, 
Allen  suddenly  abandoned  Hamlin,  abandoned  the  enterprise,  and 
went  to  his  cell  without  saying  a  word  to  Hamlin  to  the  effect  that  he 


PBISCIPALS    IN    THE    SECOND    DEGREE  77 

had  abandoned  the  enterprise,  and  Hamlin,  supposing  that  he  was 
still  acting  with  him  and  that  he  had  gone  to  his  cell  for  an  instru- 
ment to  carry  on  the  encounter,  fired  the  fatal  shot,  his  abandonment 
under  such  circumstances  would  be  of  no  importance.  A  man  can- 
not abandon  another  under  such  circumstances  and  escape  the  con- 
sequences of  the  aid  he  has  rendered  up  to  the  time  of  the  abandon- 
ment." 

A  majority  of  the  court  think  that  the  jury  may  have  been  misled 
by  this  part  of  the  charge,  and  that  therefore,  especially  in  view  of 
the  grave  issues  involved  in  this  case,  a  new  trial  should  be  granted. 

If  Allen  did  in  fact  before  the  homicide  withdraw  from  the  con- 
spiracy, abandon  the  attempt  to  escape,  and  with  the  knowledge  of 
Hamlin  leave  and  go  to  his  cell,  Hamlin's  misconstruction  of  his  pur- 
pose in  leaving  did  not  necessarily  make  his  conduct  of  no  importance. 

Until  the  fatal  shot  there  was  the  "locus  penitentice."  To  avail 
himself  of  it  Allen  must  indeed  have  informed  Hamlin  of  his  change 
of  purpose,  but  such  information  might  be  by  words  or  acts ;  and 
if,  with  the  intention  of  notifying  Hamlin  of  his  withdrawal  from  the 
conspiracy,  he  did  acts  which  should  have  been  effectual  for  that  pur- 
pose, but  which  did  not  produce  upon  the  mind  of  Hamlin  the  eft'ect 
which  he  intended  and  which  they  naturally  should  have  produced, 
such  acts  were  proper  for  the  jury  to  consider  in  determining  the 
relation  of  Allen  to  the  crime  which  was  afterwards  committed. 

Allen's  act  of  leaving  and  going  to  his  cell,  if  he  did  so,  had  some 
significance  in  connection  with  the  question  of  intention  and  notice, 
and  was  therefore  proper  for  the  consideration  of  the  jury.  How 
much  weight  was  to  be  given  to  it  w^ould  depend  upon  circumstances, 
such  as  the  situation  of  the  parties  and  the  opportunity  for  verbal 
or  other  notice. 

The  same  observations  are  perhaps  applicable  to  the  charge  of  the 
court  in  answer  to  the  sixth  request  for  instructions.  While  it  is 
clear  that  the  request  as  made  should  not  have  been  complied  with, 
the  charge  that  was  given  may  be  open  to  the  implication  that  some 
notice  of  Allen's  abandonment  of  the  conspiracy  must  have  been 
given  by  him  to  Hamlin  beyond  that  afforded  by  his  act  of  leaving. 

The  answers  of  the  court  to  the  other  requests  for  instructions 
seem  to  us^  in  view  of  the  claims  of  the  counsel  and  the  admitted 
facts  in  the  case,  to  be  correct  and  sufficiently  explicit. 

A  new  trial  is  advised. 

Granger,  Sanford,  and  Hovey,  JJ.,  concurred.  I^oomis,  J.,  dis- 
sented. 


78  PARTIES    CONCEENED   IN   THE    COMMISSION    OF   CRIMES 


III.  Accessories  Before  the  Fact  • 


REGINA  V.  JEFFRIES  et  al. 
(Central  Criminal  Court,  184S.    3  Cox,  C.  C.  85.) 

The  prisoners  were  indicted  for  larceny  in  a  dwelHng  house.  It 
appeared  that  Jeffries  was  clerk  to  one  Whittock,  the  prosecutor,  who 
was  a  coal  dealer.  The  prosecutor's  money  chest  was  kept  in  a  room 
adjoining  the  office,  and  of  the  door  of  this  room  the  prisoner  Jef- 
fries had  a  key.  On  the  night  of  the  larceny  he  was  proved  to  have 
unlocked  the  door  and  then  gone  away.  About  20  minutes  afterwards 
the  prisoner  Bryant  came  to  the  room  and  removed  the  money  chest. 
It  was  attempted  to  be  shown,  on  the  part  of  the  prisoner  Jeffries, 
that  he  was  three-quarters  of  a  mile  from  the  prosecutor's  premises 
at  the  time  Bryant  was  there. 

CrEsswELL,  J.,  told  the  jury  that  where  one  person  opens  the  door 
of  a  house  which  contains  the  articles  stolen,  and  then  goes  away, 
and  another  in  his  absence,  but  acting  in  concert  with  him,  enters 
the  house  and  commits  the  larceny,  the  one  who  opens  the  door  is 
not  guilty  as  a  principal  in  the  act. 

Greaves,  for  the  prosecution,  submitted  that  JeftVies  was  guilty  of 
a  joint  larceny,  although  he  was  not  actually  present  at  the  time  of 
the  removal  by  Bryant.  In  the  case  of  burglary,  where  the  break- 
ing is  in  one  night  and  the  entry  the  next  night,  a  person  present  at 
the  breaking,  though  not  present  at  the  entering,  is  in  law  guilty  of 
the  whole  offense.    Rex  v.  Jordan,  7  C.  &  P.  432. 

Cresswell,  J.,  said  he  would  consult  Mr.  Justice  Patteson,  sit- 
ting in  the  Nisi  Prius  Court.  On  his  return,  he  said  Mr.  Justice  Pat- 
TESON  agreed  with  him,  and  entertained  no  doubt  on  the  point;  and 
accordingly 

CrEsswELL,  J.,  directed  the  jury,  if  they  believed  that  Jeffries  was 
not  present  assisting  Bryant  at  the  time  of  the  removal  of  the  chest, 
to  acquit  him. 

«  For  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §  48. 


ACCESSORIES   AFTER   TUE   FACT  T9 


IV.  Accessories  After  the  Fact ' 


REGINA  V.  BUTTERFIELD. 
(Yorkshire  Winter  Assizes,  1843.    1  Cox,  C.  C.  30.) 

The  prisoner  was  indicted  as  an  accessory  after  the  fact.  The  in- 
dicUnent  stated  that  at  a  general  sessions  of  Oyer  and  Terminer,  etc., 
holden,  etc.,  on  the  12th  July,  in  the  seventh  year,  etc.,  before,  etc., 
it  was  presented  that  Thomas  Butterfield,  then  late  of,  etc.,  and  Pat- 
rick Burke,  then  late  of,  etc.  (it  then  sets  out  the  former  indictment 
against  Burke  and  Butterfield,  for  a  robbery  of  a  ilOO  note),  upon 
which  said  indictment  the  said  T.  Butterfield  was,  at  the  general  ses- 
sions, etc.,  aforesaid,  found  not  guilty,  etc.,  and  the  said  Patrick 
Burke  was  duly  convicted  and  found  guilty  of  the  felony  and  rob- 
bery aforesaid,  as  by  the  said  record  thereof  more  fully  and  at  large 
appears.  And  the  jurors  aforesaid,  etc.,  that  the  said  Thomas  Butter- 
field, well  knowing  the  said  Patrick  Burke  to  have  done  and  com- 
mitted the  robbery  aforesaid,  after  the  same  was  committed,  to  wit, 
on,  etc.,  at,  etc.,  him,  the  said  Patrick  Burke,  did  feloniously  receive, 
harbor,  maintain,  relieve,  aid,  comfort,  and  assist,  contrary  to  the  form 
of  the  statute,  etc.,  and  against  the  peace,  etc. 

The  prisoner  had  been  indicted,  together  with  Burke,  for  a  robber}^ 
of  the  note  from  a  person  of  the  name  of  Turner;  .and  it  appeared 
that,  shortly  after  the  robbery  was  committed,  Butterfield  applied  to 
his  landlady  to  change  the  note,  but  did  not  succeed,  and  that  Burke 
then  went  to  a  shop  to  purchase  some  articles,  for  the  payment  of 
which  he  tendered  the  note,  and  received  a  large  part  of  it  in  change, 
and  that  during  the  time  he  was  in  the  shop  Butterfield  was  waiting 
outside. 

Bliss  then  submitted  that  the  evidence  did  not  support  the  indict- 
ment. The  prisoner  is  not  charged  with  being  an  accessory  after  the 
fact  under  the  statute  which  makes  receiving  stolen  goods  a  felony, 
but  at  common  law.  He  is  charged  with  feloniously  "receiving,  har- 
boring, maintaining,  relieving,  aiding,  comforting,  and  assisting  Burke"  ; 
but  that  is  not  at  all  maintained  by  showing  anything  done  with  the 
stolen  property.  Harboring,  etc.,  means  doing  something  to  enable 
the  prisoner  to  escape.  If  it  had  meant  assisting  him  in  making  away 
with  the  stolen  property,  the  statute  would  have  been  useless ;  for  at 
common  law,  to  make  a  man  an  accessory  after  the  fact,  he  must 
have  given  the  felon  some  personal  assistance.     "An  accessory  after 

■     1  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §  49. 


so  PARTIES    CONCERNED   IN    THE   COMMISSION    OF   CRIMES 

the  fact  is  one  who  knowing  a  felony  to  have  been  committed  by  an- 
other, receives,  relieves,  comforts,  or  assists  the  felon."  1  Hale,  618; 
Archbold's  Crim.  Law  (7th  Ed.)  8.  "With  regard  to  the  acts  which 
will  render  a  man  guilty  as  an  accessory  after  the  fact,  it  is  laid  down 
that  generally  any  assistance  whatever  given  to  a  person  known  to 
be  a  felon,  in  order  to  hinder  his  being  apprehended  or  tried,  or  suf- 
fering the  punishment  to  which  he  is  condemned,  is  a  sufficient  receipt 
for  this  purpose,  as  where  a  person  assists  him  with  a  horse  to  ride 
away  with,  or  with  money  or  victuals  to  support  him  in  his  escape, 
or  where  any  one  harbors  and  conceals  in  his  house  a  felon  under 
pursuit,  in  consequence  of  which  his  pursuers  cannot  find  him;  much 
more,  where  the  party  harbors  a  felon,  and  the  pursuers  dare  not 
take  him."    Hawk.  P.  C.  p.  2,  c.  29,  §  26 ;   Roscoe  on  Cr.  Ev.  208. 

Wilkins  and  Pickering,  contra.  Quite  enough  has  been  proved  to 
leave  this  case  for  a  jury  to  decide.  There  can  be  no  doubt  that  But- 
terfield  was  outside  the  shop  with  the  intention  of  aiding  and  assist- 
ing Burke  in  getting  rid  of  the  note,  and  was  there  with  the  inten- 
tion of  aiding  him  in  his  escape,  and  he  consequently  comes  v/ithin 
Lord  Hale's  definition.  It  is  for  the  jury  to  say  whether  he  did  know 
that  a  felony  had  been  committed,  and  was  there  to  aid  and  assist. 
The  statute  has  made  no  difit'erence.  In  one  sense,  enabling' the  felon 
to  get  rid  of  the  stolen  property  is  a  mode  of  preventing  his  being 
apprehended  and  tried,  and  is  a  kind  of  personal  assistance;  but  the 
true  definition  is,  "any  means  by  which  a  party,  knowing  a  felony 
to  have  been  committed,  enables  the  felon  to  obtain  the  fruits  of  that 
felony."     If  so,  we  come  within  that  definition. 

Bliss,  in  reply.  My  complaint  is  that  we  are  charged  with  receiving 
and  harboring  the  felon,  but  the  proof  is  of  receiving  the  goods.  That 
cannot  come  within  the  words  "comfort  and  assistance."  There  is 
no  evidence  of  any  personal  act  of  receiving,  comforting,  or  assisting 
him,  nor  any  evidence  which,  at  common  law,  would  constittite  the 
prisoner  an  accessory  after  the  fact. 

MaulU,  J.^  I  think  there  is  evidence  of  comforting  and  assisting 
which  would  make  the  prisoner  an  accessory  after  the  fact.  If  a  man 
stole  a  horse,  and  another  assisted  him  in  coloring  and  disguising  him, 
so  that  he  could  not  be  known  again,  that  would  make  him  an  acces- 
sory. Here  the  prisoner  assists  the  party  who  has  stolen  the  goods  to 
get  rid  of  them,  and  thus  evade  the  justice  of  the  country. 

MauliS,  J.  (to  the  jury).  The  question  is  whether  the  prisoner 
gave  assistance,  comfort,  and  aid  to  Burke,  knowing  he  had  committed 
this  robbery?  The  evidence  is  that  they  were  found  in  Gally's  shop, 
very  earnest  to  get  change,  and  before  that,  on  the  same  day.  Butter- 
field  had  applied  to  the  landlady  for  change.  Now,  supposing  that  But- 
terfield  had  known  this  was  a  robbery,  and  was  assisting  Burke  in  get- 

8  Part  of  this  case  is  omitted. 


prixcipal's  liability  for  acts  of  agent  81 

ting  money,  and  thus  suppressing  the  important  evidence  of  the  posses- 
sion of  the  note,  I  think  that  there  was  assistance  within  the  meaning 
of  the  statute.  If  you  are  convinced  that  the  prisoner  knew  that  this 
money  was  a  part  of  the  proceeds  of  the  robbery,  and  that  he  went 
with  Burke  to  enable  him  to  effect  his  object  in  getting  rid  of  the  mon- 
ey, then  you  must  find  him  guilty.  If  he  did  not  know  that  Burke  was 
guilty  of  this  robbery,  or  that  this  bank  note  was  part  of  it,  you  ought 
to  acquit  him. 

The  prisoner  was  found  guilty.     *     *     * 


V.  Principal's  Liability  for  Acts  of  Agent  • 


COMMONWEALTH  v.  STEVENS. 

(Supreme  Judicial  Court  of  Massacliusetts,  1S92.    155  Mass.  291,  29  N.  B.  508.) 

Knowlton,  J.^°  *  *  *  'j^i^g  Qj-^]y  other  exceptions  argued  re- 
late to  the  refusal  of  the  court  to  give  the  defendant's  third  request  for 
instructions  to  the  jury,  and  to  the  instructions  given. 

The  instructions  given  were  as  follows :  "If  you  are  satisfied  beyond 
a  reasonable  doubt  that  the  defendant  stood  by  and,  saw  this  sale  to  the 
minor,  and  assented  to  it,  he  is  liable  for  the  sale.  If  the  defendant 
used  proper  care  in  the  selection  of  his  clerks,  and  used  proper  precau- 
tions by  instructions  to  and  supervision  of  his  clerks,  he  was  not  bound 
to  personally  scrutinize  the  person  of  every  customer  who  applied  for 
liquor.  If  he  does  see  the  customers,  and  any  of  them  are  minors,  and 
he  stands  by,  knowing  that  a  sale  is  made  by  a  clerk  to  a  minor,  and 
he  does  not  prevent  it,  he  is  liable.  The  defendant  is  not  liable  if  the 
sale  by  the  clerk  was  an  honest  mistake  on  the  part  of  the  clerk  as 
to  the  age  of  the  person  to  whom  he  sold,  provided  the  jury  are  sat- 
isfied "that  the  master  sincerely  and  honestly  intended  that  his  instruc- 
tions should  be  obeyed  in  good  faith,  and  that  he  was  not  negligent  or 
careless  in  the  selection  of  his  clerks,  or  in  the  regulations  and  pre- 
cautions which  he  prescribed  for  their  guidance.  The  evidence  as  to 
the  other  sales  made,  and  the  business  carried  on  at  the  store,  is  only 
competent  upon  the  question  of  the  reasonableness  of  the  precautions 
taken  by  the  defendant  to  prevent  sales  to  minors,  and  whether  the 

9  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §  52. 

10  Tlie  statement  of  facts  and  part  of  the  opinion  are  omitted. 

MiKELL  Cas.Cb.L. — 6 


82  PARTIES    CONCERNED   IN    THE    COMMISSION    OF    CRIMES 

method  of  determining  the  age  of  a  customer  was  a  reasonable  one,  or 
whether  it  indicated  bad  faith  or  neghgence  on  the  part  of  the  defend- 
ant in  the  mode  of  conducting  his  business." 

The  request  was  as  follows:  "If  the  sale  and  attendant  circumstanc- 
es found  by  the  jury  are  consistent  with  the  theory  that  defendant 
really  intended  that  no  sale  should  be  made  to  minors,  but  was  merely 
negligent,  then  the  jury  must  acquit." 

The  question  before  the  jury  was,  not  whether  the  defendant  in- 
tended that  no  sale  should  be  made  to  minors,  but  whether  the  sale 
which  was  made  was  his  act.  If  he  made  the  sale,  and  intended  to  make 
it,  it  would  be  no  defense  that  he  was  mistaken  in  supposing  that  the 
buyer  was  not  a  minor.  It  is  to  be  remembered  that  the  statute  for- 
bidding the  unlicensed  sale  of  intoxicating  liquor,  like  the  laws  regu- 
lating the  sale  of  milk,  and  many  other  similar  statutes,  punishes  the 
unlawful  act,  and  on  grounds  of  public  policy  holds  the  defendant 
responsible  for  knowledge  of  the  nature  of  his  act ;  so  that  it  is  possi- 
ble in  a  supposable  case  for  one  to  be  guilty  of  a  technical  violation  of 
the  law  without  culpability,  and  to  find  it  necessary  for  his  protection 
to  appeal  to  the  sense  of  justice  of  those  who  are  intrusted  with  the 
administration  of  the  law.  Commonwealth  v.  Uhrig,  138  Mass.  492. 
If  the  sale  was  made  by  his  clerk,  and  if  it  was  authorized  by  him  by 
special  authority  in  the  particular  case,  or  by  a  general  authority  which 
included  it,  it  would  be  no  defense  to  show  that  he  did  not  intend  to 
make  sales  to  minors,  but  was  negligent  in  not  taking  measures  to 
prevent  them.  Through  a  long  line  of  cases  the  test  of  the  master's 
liability  for  an  act  of  this  kind  done  by  his  servant  has  been  whether 
it  was  done  by  his  authority.  Commonwealth  v.  Putnam,  4  Gray,  16 ; 
Commonwealth  v.  Wachendorf,  141  Mass.  270,  4  N.  E.  817;  Com- 
monwealth v.  Briant,  142  Mass.  463,  8  N.  E.  338,  56  Am.  Rep.  707; 
Commonwealth  v.  Stevenson,  142  Mass.  466,  8  N.  E.  341 ;  Common- 
wealth V.  Hayes,  145  Mass.  289,  14  N.  E.  151;  Commonwealth  v. 
Rooks,  150  Mass.  59,  22  N.  E.  436. 

The  criminal  liability  of  a  master  for  the  act  of  his  servants  does 
not  extend  so  far  as  his  civil  liability,  inasmuch  as  he  cannot  be  held 
criminally  for  what  the  servant  does  contrary  to  his  orders,  and  with- 
out any  authority,  express  or  implied,  merely  because  it  is  in  the  course 
of  his  business  and  within  the  scope  of  the  servant's  employment; 
but  he  would  be  liable  civilly. for  a  tort  of  this  kind.  Roberge  v.  Burn- 
ham,  124  Mass.  277;  George  v.  Gobey,  128  Mass.  289,  35  Am.  Rep. 
376.  But  if  the  act  is  the  master's,  because  done  by  the  servant  within 
his  authority,  and  especially  if  it  is  an  act  which  is  made  punishable 
even  when  done  in  ignorance  of  its  punishable  quality,  the  statute  ap- 
plies to  the  master  as  well  as  to  the  servant. 

The  defendant  was  not  aggrieved  by  the  instructions  given.  In  one 
part  of  the  case  the  jury  were  told  that  the  proof  must  be  beyond  a 


principal's  liarility  for  acts  of  agent  83 

reasonable  doubt,  and  if  the  defendant  had  desired  that  their  attention 
should  be  further  directed  to  the  degree  of  proof  upon  other  points 
he  should  have  asked  for  an  instruction  in  regard  to  it. 

A  part  of  the  charge  was  directed  to  evidence  that  the  defendant 
stood  by  and  saw  the  sale  made,  and  there  was  no  error  in  it.  The 
instructions  which  are  chiefly  criticised  by  the  defendant's  counsel  fol- 
lowed closely  the  language  of  the  opinion  of  this  court  at  the  former 
hearing  of  this  case,  reported  in  153  Mass.  421,  26  N.  E.  992,  11  L. 
R.  A.  357,  25  Am.  St.  Rep.  647,  and  the  rights  of  the  defendant  were 
fully  protected  by  them. 

Exceptions  overruled. 


84  THE   OVERT  ACT — ATTEMPTS,  SOLICITATIONS,  AND  CONSPIRACY 


THE    OVERT    ACT— ATTEMPTS,    SOLICITATIONS,    AND 

CONSPIRACY 

I.  Attempts  ^ 


STATE  V.  HURLEY. 

(Supreme  Court  of  Vermont,  1906.     79  Vt.  2S,  64  Atl.  7S,  6  L.  R.  A.  [N.  S.] 

804,  lis  Am.  St.  Rep.  934.) 

MuNSON,  J,,2  delivered  the  opinion  of  the  court. 

The  respondent  is  informed  against  for  attempting  to  break  open 
the  jail  in  which  he  was  confined,  by  procuring  to  be  delivered  into 
his  hands  12  steel  hack  saws,  with  an  intent  to  break  open  the  jail 
therewith.  The  state's  evidence  tended  to  show  that,  in  pursuance 
of  an  arrangement  between  the  respondent  and  one  Tracy,  a  former  in- 
mate, Tracy  attempted  to  get  a  bundle  of  hack  saws  to  the  respondent 
by  throwing  it  to  him  as  he  sat  behind  the  bars  at  an  open  window, 
and  that  the  respondent  reached  through  the  bars  and  got  the  bundle 
into  his  hands,  but  was  ordered  at  that  moment  by  the  jailer  to  drop 
it,  and  did  so.  The  court  charged,  in  substance,  that  if  the  respondent 
arranged  for  procuring  the  saws,  and  got  them  into  his  possession  with 
an  intent  to  break  open  the  jail  for  the  purpose  of  escaping,  he  was 
guilty  of  the  offense  alleged.  The  respondent  demurred  to  the  infor- 
mation, and  excepted  to  the  charge.  Bishop  defines  a  criminal  attempt 
to  be  "an  intent  to  do  a  particular  criminal  thing,  with  an  act  toward 
it  falling  short  of  the  thing  intended."  2  Grim.  Law,  §  728.  The  main 
difficulty  in  applying  this  definition  lies  in  determining  the  relation 
which  the  act  done  must  sustain  to  the  completed  off"ense.  That  rela- 
tion is  more  fully  indicated  in  the  following  definition  given  by  Ste- 
phen :  "An  attempt  to  commit  a  crime  is  an  act  done  with  intent  to 
commit  that  crime,  and  forming  a  part  of  a  series  of  acts  which  would 
constitute  its  actual  commission  if  it  were  not  interrupted."  Dig.  Crim. 
Law,  33.  All  acts  done  in  preparation  are,  in  a  sense,  acts  done  to- 
wards the  accomplishment  of  the  thing  contemplated.  But  most  au- 
thorities certainly  hold,  and  many  of  them  state  specifically,  that  the 
act  must  be  something  more  than  mere  preparation.  Acts  of  prepara- 
tion, however,  may  have  such  proximity  to  the  place  where  the  in- 
tended crime  is  to  be  committed,  and  such  connection  with  a  purpose 
of  present  accomplishment,  that  they  will  amount  to  an  attempt.     See 

1  For  a  discussion  of  principles,  see  Clarlc  on  Criminal  Law  (3d  Ed.)  §§  55,  56. 

2  The  statement  of  facts  is  omitted. 


ATTEMPTS 


85 


note  to  People  v.  Moran  (N.  Y.)  20  Am.  St.  Rep.  741 ;  People  v.  Stites, 
75  Cal.  570,  17  Pac.  693 ;   People  v.  Lawton,  56  Barb.  (N.  Y.)  126. 

Various  rules  have  been  formulated  in  elucidating  this  subject. 
Some  acts  toward  the  commission  of  the  crime  are  too  remote  for  the 
law  to  notice.  The  act  need  not  be  the  one  next  preceding  that  needed 
to  complete  the  crime.  Preparations  made  at  a  distance  from  the  place 
where  the  offense  is  to  be  committed  are  ordinarily  too  remote  to  sat- 
isfy the  requirement.  1  Bishop,  Crim.  Law,  §§  759,  762  (4),  763.  The 
preparation  must  be  such  as  would  be  likely  to  end,  if  not  extraneously 
interrupted,  in  the  consummation  of  the  crime  intended.  3  Am.  &  Eng. 
Enc.  Law  (2d  Ed.)  p.  266,  note  7.  The  act  must  be  of  such  a  character 
as  to  advance  the  conduct  of  the  actor  beyond  the  sphere  of  mere  in- 
tent. It  must  reach  far  enough  towards  the  accomplishment  of  the  de- 
sired result  to  amount  to  the  commencement  of  the  consummation. 
Hicks  V.  Commonwealth,  86  Va.  223,  9  S.  E.  1024,  19  Am.  St.  Rep. 
891.    But  after  all  that  has  been  said  the  application  is  difficult. 

One  of  the  best  known  cases  where  acts  of  preparation  were  held 
insufficient  is  People  v.  IMurray,  14  Cal.  159,  which  was  an  indictment 
for  an  attempt  to  contract  an  incestuous  marriage.  There  the  defend- 
ant had  eloped  with  his  niece  with  the  avowed  purpose  of  marrying 
her,  and  had  taken  measures  to  procure  the  attendance  of  a  magistrate 
to  perform  the  ceremony.  In  disposing  of  the  case.  Judge  Field  said : 
"Between  preparations  for  the  attempt  and  the  attempt  itself  there  is 
a  wide  dift'erence.  The  preparation  consists  in  devising  or  arranging 
the  means  or  measures  necessary  for  the  commission  of  the  offense. 
The  attempt  is  the  direct  movement  toward  the  commission  after  the 
preparations  are  made."  Mr.  Bishop  thinks  this  case  is  near  the  divid- 
ing line,  and  doubts  if  it  will  be  followed  by  all  courts.  1  Crim.  Law, 
§  763  (3).  Mr.  Wharton  considers  the  holding  an  undue  extension  of 
the  doctrine  that  preliminary  preparations  are  insufficient.  Crim.  Law, 
181,  note.  But  the  case  has  been  cited  with  approval  by  courts  of  high 
standing.  The  exact  inquiry  presented  by  the  case  before  us  is  wheth- 
er the  procurement  of  the  means  of  committing  the  offense  is  to  be 
treated  as  a  preparation  for  the  attempt,  or  as  the  attempt  itself.  In 
considering  this  question,  it  must  be  remembered  that  there  are  some 
acts,  preparatory  in  their  character,  wdiich  the  law  treats  as  substan- 
tive offenses ;  for  instance,  the  procuring  of  tools  for  the  purpose  of 
counterfeiting,  and  of  indecent  prints  with  intent  to  publish  them. 
Comments  upon  cases  of  this  character  may  lead  to  confusion,  if  not 
correctly  apprehended.    Wharton,  Crim.  Law,  §  180,  and  note  1. 

The  case  of  Griffin  v.  State,  26  Ga.  493,  cited  by  the  respondent, 
cannot  be  accepted  as  an  authority  in  his  favor.  There  the  defendant 
was  charged  with  attempting  to  break  into  a  storehouse  with  intent  to 
steal,  by  procuring  an  impression  of  the  key  to  the  lock  and  preparing 
from  this  impression  a  false  key  to  fit  the  lock.  The  section  of  the 
Penal  Code  upon  which  the  indictment  was  based  provides  for  the  in- 


86  THE    OVERT   ACT — ATTEMPTS,  SOLICITATIONS,  AND  CONSPIRACY 

dictment  of  any  one  who  "shall  attempt  to  commit  an  offense  prohib- 
ited by  law,  and  in  such  an  attempt  shall  do  any  act  toward  the  com- 
mission of  such  offense."  The  court  considered  that  the  General  As- 
sembly used  the  word  "attempt"  as  synonymous  with  "intend,"  and 
that  the  object  of  the  enactment  was  to  punish  "intents,"  if  demon- 
strated by  an  act.  The  court  cited  Rex  v.  Sutton,  2  Strange,  1074,  as 
a  strong  authority  in  support  of  the  indictment.  There  the  prisoner 
was  convicted  for  having  in  his  possession  iron  stamps,  with  intent  to 
impress  the  scepter  on  sixpences.  This  was  not  an  indictment  for  any 
attempt,  but  for  the  offense  of  possessing  tools  for  counterfeiting  with 
intent  to  use  them.  The  Georgia  court,  by  its  construction  of  the  stat- 
ute, relieved  itself  from  the  distinction  between  "attempts"  and  crimes 
of  procuring  or  possessing  with  unlawful  intent. 

The  act  in  question  here  is  the  procuring  by  a  prisoner  of  tools 
adapted  to  jail-breaking.  That  act  stands  entirely  unconnected  with 
any  further  act  looking  to  their  use.  It  is  true  that  the  respondent 
procured  them  with  the  design  of  breaking  jail.  But  he  had  not  put 
that  design  into  execution,  and  might  never  have  done  so.  He  had 
procured  the  means  of  making  the  attempt,  but  the  attempt  itself  was 
still  in  abeyance.  Its  inauguration  depended  upon  the  choice  of  an 
occasion  and  a  further  resolve.  That  stage  was  never  reached,  and  the 
procuring  of  the  tools  remained  an  isolated  act.  To  constitute  an  at- 
tempt, a  preparatory  act  of  this  nature  must  be  connected  with  the  ac- 
complishment of  the  intended  crime  by  something  more  than  a  general 
design. 

Exceptions  sustained,  judgment  and  verdict  set  aside,  demurrer  sus- 
tained, information  held  insufficient  and  quashed,  and  respondent  dis- 
charged. 


PEOPLE  v.  JAFFE. 

(Court  of  Appeals  of  New  York,  1906.    185  N.  Y.  497,  78  N.  E.  169,  9  L.  R.  A. 

[N.  S.]  203,  7  Ami.  Cas.  348.) 

WiLLARD  BartlETT,  J.^  The  indictment  charged  that  the  defend- 
ant on  the  6th  day  of  October,  1902,  in  the  county  of  New  York,  felo- 
niously received  20  yards  of  cloth,  of  the  value  of  25  cents  a  yard,  be- 
longing to  the  copartnership  of  J.  W.  Goddard  &  S'on,  knowing  that 
the  said  property  had  been  feloniously  stolen,  taken  and  carried  away 
from  the  owners.  It  was  found  under  section  550  of  the  Penal  Code, 
which  provides  that  a  person  who  buys  or  receives  any  stolen  property 
knowing  the  same  to  have  been  stolen  is  guilty  of  criminally  receiving 
such  property.  The  defendant  was  convicted  of  an  attempt  to  commit 
the  crime  charged  in  the  indictment.     The  proof  clearly  showed,  and 

•  The  statement  of  facts  is  omitted. 


ATTEMPTS  87 

the  district  attorney  conceded  upon  the  trial,  that  the  goods  which  the 
defendant  attempted  to  purchase  on  October  6,  1902,  had  lost  their 
character  as  stolen  goods  at  the  time  when  they  were  offered  to  the 
defendant  and  when  he  sought  to  buy  them.  In  fact,  the  property 
had  been  restored  to  the  owners,  and  was  wholly  within  their  control, 
and  was  offered  to  the  defendant  by  their  authority  and  through  their 
agency.  The  question  presented  by  this  appeal,  therefore,  is  whether, 
upon  an  indictment  for  receiving  goods  knowing  them  to  have  been 
stolen,  the  defendant  may  be  convicted  of  an  attempt  to  commit  the 
crime  where  it  appears  without  dispute  that  the  property  which  he 
sought  to  receive  was  not  in  fact  stolen  property. 

The  conviction  was  sustained  by  the  Appellate  Division  chiefly  upon 
the  authority  of  the  numerous  cases  in  which  it  has  been  held  that 
one  may  be  convicted  of  an  attempt  to  commit  a  crime  notwithstand- 
ing the  existence  of  facts  unknown  to  him  which  would  have  rendered 
the  complete  perpetration  of  the  crime  itself  impossible.  Notably 
among  these  are  what  may  be  called  the  "Pickpocket  Cases,"  where, 
in  prosecutions  for  attempts  to  commit  larceny  from  the  person  by 
pocket-picking,  it  is  held  not  to  be  necessary  to  allege  or  prove  that 
there  was  anything  in  the  pocket  which  could  be  the  subject  of  larceny. 
Commonwealth  v.  McDonald,  5  Gush.  (Mass.)  365 ;  Rogers  v.  Com- 
monwealth, 5  Serg.  &  R.  (Pa.)  463 ;  State  v.  Wilson,  30  Conn.  500 : 
People  V.  Moran,  123  N.  Y.  254,  25  N.  E.  412,  10  L.  R.  A.  109,  20 
Am.  St.  Rep.  732.  Much  reliance  was  also  placed  in  the  opinion  of 
the  learned  Appellate  Division  upon  the  case  of  People  v.  Gardner, 
144  N.  Y.  119,  38  N.  E.  1003,  28  L.  R.  A.  699,  43  Am.  St.  Rep.  741, 
where  a  conviction  of  an  attempt  to  commit  the  crime  of  extortion 
was  upheld,  although  the  woman  from  whom  the  defendant  sought 
to  obtain  money  by  a  threat  to  accuse  her  of  a  crime  was  not  induced 
to  pay  the  money  by  fear,  but  was  acting  at  the  time  as  a  decoy  for 
the  police,  and  hence  could  not  have  been  subjected  to  the  influence 
of  fear.  In  passing  upon  the  question,  here  presented  for  our  deter- 
mination, it  is  important  to  bear  in  mind  precisely  what  it  was  that  the 
defendant  attempted  to  do.  He  simply  made  an  effort  to  purchase  cer- 
tain specific  pieces  of  cloth.  He  believed  the  cloth  to  be  stolen  prop- 
erty, but  it  was  not  such  in  fact.  The  purchase,  therefore,  if  it  had 
been  completely  effected,  could  not  constitute  the  crime  of  receiving 
stolen  property  knowing  it  to  be  stolen,  since  there  could  be  no  such 
thing  as  knowledge  on  the  part  of  the  defendant  of  a  nonexistent  fact, 
although  there  might  be  a  belief  on  his  part  that  the  fact  existed.  As 
Mr.  Bishop  well  says,  it  is  a  mere  truism  that  there  can>  be  no  receiving 
of  stolen  goods  which  have  not  been  stolen.  2  Bishop,  New  Grim. 
Law,  §  1140.  It  is  equally  difficult  to  perceive  how  there  can  be  ar 
attempt  to  receive  stolen  goods,  knowing  them  to  have  been  stolen, 
when  they  have  not  been  stolen  in  fact. 

The  crucial  distinction  between  the  case  before  us  and  the  pick- 


88  THE    OVERT   ACT — ATTEMPTS,  SOLICITATIONS,  AND  CONSPIRACY 

pocket  cases,  and  others  involving  the  same  principle,  lies,  not  in  the 
possibility  or  impossibility  of  the  commission  of  thfe  crime,  but  in  the 
fact  that  in  the  present  case  the  act  which  it  was  doubtless  the 
intent  of  the  defendant  to  commit  would  not  have  been  a  crime  if  it 
had  been  consummated.  If  he  had  actually  paid  for  the  goods  which 
he  desired  to  buy  and  received  them  into  his  possession,  he  would 
have  committed  no  offense  under  section  550  of  the  Penal  Code,  be- 
cause the  very  definition  in  that  section  of  the  oft'ense  of  criminally  re- 
ceiving property  makes  it  an  essential  element  of  the  crime  that  the 
accused  shall  have  known  the  property  to  have  been  stolen  or  wrong- 
fully appropriated  in  such  a  manner  as  to  constitute  larceny.  This 
knowledge  being  a  material  ingredient  of  the  offense,  it  is  manifest 
that  it  cannot  exist  unless  the  property  has  in  fact  been  stolen  or  lar- 
cenously  appropriated.  No  man,  can  know  that  to  be  so  which  is  not 
so  in  truth  and  in  fact.  He  may  believe  it  to  be  so,  but  belief  is  not 
enough  under  the  statute.  In  the  present  case  it  appeared,  not  only 
by  the  proof,  but  by  the  express  concession  of  the  prosecuting  officer, 
that  the  goods  which  the  defendant  intended  to  purchase  had  lost  their 
character  as  stolen  goods  at  the  time  of  the  proposed  transaction. 
Hence,  no  matter  what  was  the  motive  of  the  defendant,  and  ho  mat- 
ter what  he  supposed,  he  could  do  no  act  which  was  intrinsically 
adapted  to  the  then  present  successful  perpetration  of  the  crime  de- 
nounced by  this  section  of  the  Penal  Code,  because  neither  he  nor  any 
one  in  the  world  could  know  that  the  property  was  stolen  property, 
inasmuch  as  it  was  not,  in  fact,  stolen  property.  In  the  pickpocket  cases 
the  immediate  act  which  the  defendant  had  in  contemplation  was  an  act 
which,  if  it  could  have  been  carried  out,  would  have  been  criminal; 
whereas  in  the  present  case  the  immediate  act  which  the  defendant 
had  in  contemplation  (to  wit,  the  purchase  of  the  goods  which  were 
brought  to  his  place  for  sale)  could  not  have  been  criminal  under  the 
statute,  even,  if  the  purchase  had  been  completed,  because  the  goods 
had  not  in  fact  been  stolen,  but  were,  at  the  time  when  they  were  of- 
fered to  him,  in  the  custody  and  under  the  control  of  the  true  owners. 
If  all  which  an  accused  person,  intends  to  do  would,  if  done,  con- 
stitute no  crime,  it  cannot  be  a  crime  to  attempt  to  do  with  the  same 
purpose  a  part  of  the  thing  intended.  1  Bishop's  Crim.  Law  (7th 
Ed.)  §  747.  The  crime  of  which  the  defendant  was  convicted  neces- 
sarily consists  of  three  elements :  First,  the  act ;  second,  the  intent ; 
and,  third,  the  knowledge  of  an,  existing  condition.  There  was  proof 
tending  to  establish  two  of  these  elements,  the  first  and  second,  but 
none  to  establish  the  existence  of  the  third.  This  was  knowledge 
of  the  stolen  character  of  the  property  sought  to  be  acquired.  There 
could  be  no  such  knowledge.  The  defendant  could  not  know  that 
the  property  possessed  the  character  of  stolen  property  when  it  had 
not  in  fact  been  acquired  bv  theft.  The  language  used  by  Ruger, 
C.  J.,  in  People  v.  Moran,  123  N.  Y.  254,  25  N.  E.  412,  10  L.  R.  A. 


ATTEMPTS 


89 


109,  20  Am.  S't.  Rep.  732,  quoted  with  approval  by  Earl,  J.,  in  People 
V.  Gardner,  144  N.  Y.  119,  38  N.  E.  1003,  28  L.  R.  A.  699,  43  Am. 
St.  Rep.  741,  to  the  effect  that  "the  question  whether  an  attempt  to 
commit  a  crime  has  been  made  is  determinable  solely  by  the  condition 
of  the  actor's  mind  and  his  conduct  in  the  attempted  consummation 
of  his  design,"  although  accurate  in  those  cases,  has  no  application 
to  a  case  like  this,  where,  if  the  accused  had  completed  the  act  which 
he  attempted  to  do,  he  would  not  be  guilty  of  a  criminal  offense.  A 
particular  belief  cannot  make  that  a  crime  which  is  not  so  in  the 
absence  of  such  belief.  Take,  for  example,  the  case  of  a  young  man 
who  attempts  to  vote,  and  succeeds  in  casting  his  vote  under  the  be- 
lief that  he  is  but  20  years  of  age,  when  he  is  in  fact  over  21  and  a 
qualified  voter.  His  intent  to  commit  a  crime,  and  his  belief  that  he 
was  committing  a  crime,  would  not  make  him  guilty  of  any  offense 
under  these  circumstances,  although  the  moral  turpitude  of  the  trans- 
action on  his  part  would  be  just  as  great  as  it  would  if  he  were  in  fact 
under  age.  So,  also,  in  the  case  of  a  prosecution  under  the  statute 
of  this  state  which  makes  it  rape  in  the  second  degree  for  a  man  to 
perpetrate  an  act  of  sexual  intercourse  with  a  female  not  his  wife  un- 
der the  age  of  18  years.  There  could  be  no  conviction  if  it  was  estab- 
lished upon  the  trial  that  the  female  was  in  fact  over  the  age  of  18 
years,  although  the  defendant  beheved  her  to  be  younger  and  intended 
to  commit  the  crime.  No  matter  how  reprehensible  would  be  his  act 
in  morals,  it  would  not  be  the  act  forbidden  by  this  particular  statute. 
"If  what  a  man  contemplates  doing  would  not  be  in  law  a  crime,  he 
could  not  be  said,  in  point  of  law,  to  intend  to  commit  the  crime.  If 
he  thinks  his  act  will  be  a  crime,  this  is  a  mere  mistake  of  his  under- 
standing, where  the  law  holds  it  not  to  be  such ;  his  real  intent  being  to 
do  a  particular  thing.  If  the  thing  is  not  a  crime,  he  does  not  intend 
to  commit  one  whatever  he  may  erroneously  suppose."  1  Bishop's 
Crim.  Law  (7th  Ed.)  §  742. 

The  judgment  of  the  Appellate  Division  and  of  the  Court  of  Gen- 
eral Sessions  must  be  reversed,  and  the  defendant  discharged  upon 
this  indictment,  as  it  is  manifest  that  no  conviction  can  be  had  there- 
under. This  discharge,  however,  in  no  wise  affects  the  right  to  prose- 
cute the  defendant  for  other  offenses  of  a  like  character  concerning 
which  there  is  some  proof  in  the  record,  but  which  were  not  charged 
in  the  present  indictment. 

Chase,  J.  (dissenting).  I  dissent.  Defendant  having,  with  knowl- 
edge, repeatedly  received  goods  stolen  from  a  dry  goods  firm  by  one 
of  its  employes,  suggested  to  the  employe  that  a  certain  specified 
kind  of  cloth  be  taken.  He  was  told  by  the  employe  that  that  particular 
kind  of  cloth  was  not  kept  on  his  floor,  and  he  then  said  that  he 
would  take  a  roll  of  certain  Italian  cloth,  and  carried  it  away,  but 
left  it  in  another  store,  where  he  could  subsequently  get  it  for  delivery 
to  the  defendant.     Before  it  was  actually  delivered  to  the  defendant 


90  THE    OVERT   ACT — ATTEMPTS,  SOLICITATIONS,  AND  CONSPIEACY 

the  employers  discovered  that  the  employe  had  been  stealing  from 
them,  and  they  accused  him  of  the  thefts.  The  employe  then  con- 
fessed his  guilt,  and  told  them  of  the  piece  of  cloth  that  had  been 
stolen  for  the  defendant,  but  had  not  actually  been  delivered  to  him. 
The  roll  of  cloth  so  stolen  w^as  then  taken  by  another  employe  of  the 
firm,  and  it  was  arranged  at  the  police  headquarters  that  the  em- 
ploye who  had  taken  the  cloth  should  deliver  it  to  the  defendant,  which 
he  did,  and  the  defendant  paid  the  employe  about  one-half  the  value 
thereof.  The  defendant  was  then  arrested,  and  this  indictment  was 
thereafter  found  against  him.  That  the  defendant  intended  to  com- 
mit a  crime  is  undisputed.  I  think  the  record  shows  an  attempt  to 
commit  the  crime  of  criminally  receiving  property  as  defined  in  sec- 
tions 550  and  34  of  the  Penal  Code,  within  the  decisions  of  this  court 
in  People  v.  Moran,  123  N.  Y.  254,  25  N.  E.  412,  10  L.  R.  A.  109,  20 
Am.  St.  Rep.  732,  and  People  v.  Gardner,  144  N.  Y.  119,  38  N.  E.  1003, 
28  L.  R.  A.  699,  43  Am.  St.  Rep.  741. 

Culle;n,  C.  J.,  and  Gray,  Edward  T.  Barlett,  Vann,  and  Wer- 
ner, JJ.,  concur  with  Willard  BarteETT,  J.  ChasE,  J.,  dissents 
in  memorandum. 

Judgment  of  conviction  reversed,  etc. 


SIMPSON  V.  STATE. 
(Supreme  Court  of  Alabama,  1S77.    59  Ala.  1,  .31  Am.  Rep.  1.) 

BrickELE,  C.  J.  The  indictment  contains  a  single  count,  charging, 
in  the  prescribed  form,  the  defendant  with  an  assault  with  intent  to 
murder  one  Michael  Ford.*  *  *  *  The  offense  charged  must  be 
proved,  and  an  essential  element  of  the  present  offense  is  not  only  an 
assault  with  intent  to  murder,  but  the  specific  intent  to  murder  Ford, 
the  person  named  in  the  indictment.  If  the  intent  was  to  murder 
another,  or  if  there  was  not  the  specific  intent  to  murder  Ford,  there 
cannot  be  a  conviction  of  the  aggravated  offense  charged,  though 
there  may  be  of  the  minor  offense  of  assault,  or  of  assault  and  bat- 
tery. Barkus  v.  State,  49  Miss.  17,  19  Am.  Rep.  1 ;  Jones  v.  State, 
11  Smedes  &  M.  (Miss.)  315;  Ogletree  v.  State,  28  Ala.  693;  Mor- 
gan v.  State,  33  Ala.  413 ;  State  v.  Abram,  10  Ala.  928. 

The  intent  cannot  be  implied  as  matter  of  law.  It  must  be  proved 
as  matter  of  fact,  and  its  existence  the  jury  must  determine  from 
all  the  facts  and  circumstances  in  evidence.  It  is  true  the  aggravated 
offense  with  which  the  defendant  is  charged  cannot  exist,  unless,  if 
death  had  resulted,  the  completed  offense  would  have  been  murder. 
From  this  it  does  not  necessarily  follow  that  every  assault  from  which, 

4  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


ATTEMPTS  91 

if  death  ensiled,  the  offense  would  be  murder,  is  an  assault  with  in- 
tent to  murder,  within  the  purview  of  the  statute,  or  that  the  specific 
intent,  the  essential  characteristic  of  the  offense,  exists.  Therefore 
in  Moore  v.  State,  18  Ala.  533,  an  affirmative  instruction,  "that  the 
same  facts  and  circumstances  which  would  make  the  offense  murder, 
if  death  ensued,  furnish  sufficient  evidence  of  the  intention,"  was 
declared  erroneous.  The  court  say:  "There  are  a  number  of  cases 
where  a  killing  would  amount  to  murder,  and  yet  the  party  did  not 
intend  to  kill.  As  if  one  from  the  housetop  recklessly  throw  down 
a  billet  of  wood  upon  the  sidewalk  where  persons  are  constantly 
passing,  and  it  fall  upon  a  person  passing  by  and  kill  him,  this  would 
be,  by  the  common  law,  murder;  but  if,  instead  of  killing  him,  it 
inflicts  only  a  slight  injury,  that  party  could  not  be  convicted  of  an 
assault  with  intent  to  murder."  Other  illustrations  may  be  drawn 
from  our  statutes :  Murder  in  the  first  degree  may  be  committed  in 
the  attempt  to  perpetrate  arson,  rape,  robbery,  or  burglary,  and  yet 
an  assault  committed  in  such  attempt  is  not  an  assault  with  intent  to 
murder.  If  the  intent  is  to  ravish,  or  to  rob,  it  is  under  the  statute  a 
distinct  offense  from  an  assault  with  intent  to  murder,  though  pun- 
ished with  the  same  severity.  And  at  common  law,  if  death  results 
in  the  prosecution  of  a  felonious  ifitent,  from  an  act  malum  in  se,  the 
killing  is  murder.  As  if  A.  shoot  at  the  poultry  of  B.,  intending  to 
steal  them,  and  by  accident  kills  a  human  being,  he  is  guilty  of 
murder.  1  Russ.  Cr.  540.  Yet,  if  death  did  not  ensue,  if  there  was 
a  mere  battery,  or  a  wounding,  it  is  not,  under  the  statute,  an  assault 
with  intent  to  murder.  The  statute  is  directed  against  an  act  done 
with  the  particular  intent  specified.  The  intent  in  fact  is  the  intent  to 
murder  the  person  named  in  the  indictment,  and  the  doctrine  of  an 
intent  in  law  different  from  the  intent  in  fact,  has  no  just  application ; 
and  if  the  real  intent  shown  by  the  evidence  is  not  that  charged  there 
cannot  be  a  conviction  for  the  offense  that  intent  aggravates,  and  ip 
contemplation  of  the  statute  merits  punishment  as  a  felony.  Ogle- 
tree  v.  State,  supra ;  Morgan  v.  State,  supra.  As  is  said  by  Mr. 
Bishop,  the  reason  is  obvious.  The  charge  against  the  defendant  is 
that,  in  consequence  of  a  particular  intent  reaching  beyond  the  act 
done,  he  has  incurred  a  guilt  beyond  what  is  deducible  merely  from 
the  act  wrongfully  performed,  and  therefore  to  extract  by  legal  fic- 
tion from  this  act  such  further  intent,  and  then  add  it  back  to  the  act 
to  increase  its  severity,  is  bad  in  law.     1  Bish.  Cr.  Law,  §  514. 

An  application  of  these  general  principles  will  show  that  several 
of  the  instructions  given  by  the  city  court  were  erroneous,  and  some 
of  them  misleading,  or  invasive  of  the  province  of  the  jury.  The 
sixth  asserts  the  familiar  principle  of  the  law  of  evidence  that  a  man 
must  be  presumed  to  intend  the  natural  and  probable  consequences 
of  his  acts,  and  from  it  draws  the  conclusion  "that,  if  a  man  shoots 
another  with  a  deadly  weapon,  the  law  presumes  that  by  such  shoot- 


92  THE    OVERT    ACT — ATTEMPTS,  SOLICITATIONS,  AND  CONSPIRACY 

ing  he  intended  to  take  the  life  of  the  person  shot."  Whether  this 
instruction  would  or  would  not  be  correct,  if  death  had  ensued  from 
the  shooting  and  the  defendant  was  on  trial  for  the  homicide,  it  is 
not  now  important  to  consider.  In  a  case  of  this  character  the  in- 
struction is  essentially  eiToneous,  for,  if  it  has  any  force,  it  con- 
verts the  material  element  of  the  offense,  the  intent  to  murder  a 
particular  person,  into  a  presumption  of  law,  drawn  from  the  nature 
of  the  weapon  and  the  act  done  with  it;  while  the  intent  is  a  fact 
which  must  be  found  by  the  jury,  and  the  character  of  the  weapon 
and  the  act  done  are  only  facts  from  which  it  may  or  may  not  be  in- 
ferred. The  weapon  used,  and  the  act  done,  may  in  the  light  of  other 
facts  and  circumstances  import  an  intent  to  maim,  or  merely  to  wound, 
distinct  offenses  from  that  imputed  to  the  defendant ;  and  maiming 
or  wounding  is  a  probable  natural  consequence  of  the  act  done  with 
such  weapon.     *     *     * 

The  result  is  that  the  judgment  of  the  city  court  is  reversed,  and 
the  cause  remanded.  The  prisoner  will  remain  in  custody  until  dis- 
charged by  due  course  of  law. 


II.  Solicitation  " 


COMMONWEALTH  v.  HUTCHINSON. 

(Superior  Court  of  Pennsylvania,  189S.    6  Pa.  Super.  Ct.  405.) 

Smith,  J.®  The  defendant  was  convicted  and  sentenced  on  the 
charge  of  soliciting  one  Robert  Williams  to  burn  a  store  building.     *     * 

It  is  contended,  on  the  part  of.  the  defense,  that  solicitation  to  com- 
mit a  misdemeanor  is  not  indictable,  and  that,  as  the  indictment  charg- 
es only  such  solicitation,  it  sets  forth  no  criminal  offense. 

There  seems  no  question  that  solicitation  to  commit  a  felony  is  a 
misdemeanor.  Rex  v.  Higgins,  2  East,  5 ;  Rex  v.  Hickman,  1  Moody, 
34;  Reg.  v.  Quail,  4  F.  &  F.  1076;  State  v.  Avery,  7  Conn.  266,  18 
Am.  Dec.  105 ;  People  v.  Bush,  4  Hill  (N.  Y.)  133 ;  Commonwealth 
V.  McGill  et  al..  Add.  (Pa.)  21 ;  State  v.  Bowers,  35  S.  C.  262,  14  S. 
E.  488,  15  L.  R.  A.  199,  28  Am.  St.  Rep.  847.  This,  however,  can- 
not be  affirmed  of  the  broad  proposition  that  solicitation  to  commit  a 
misdemeanor  is  itself  a  misdemeanor  On  the  contrary,  it  seems  clear 
that  with  respect  to  various  misdemeanors,  involving  little  or  no  moral 

6  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §  57. 
e  Tlie  statement  of  facts  and  part  of  the  opinion  are  omitted. 


SOLICITATION  93 

turpitude  or  prejudice  to  society,  solicitation  to  their  commission  is 
not  in  law  an  offense.  It.  is  equally  clear  that  as  to  certain  others  it  is 
an  offense.  The  cases  cited  in  Wharton's  Criminal  Law,  §  179,  show 
that  such  solicitations  arc  indictable  "when  their  object  is  interference 
with  public  justice,  as  when  a  resistance  to  the  execution  of  a  judicial 
writ  is  counseled,  or  perjury  is  advised,  or  the  escape  of  a  prisoner  is 
encouraged,  or  the  corruption  of  a  public  officer  is  sought,  or  is  in- 
vited by  the  officer  himself."  In  Rex  v.  Phillips,  6  East,  464,  it  was 
held  that  solicitation  to  commit  a  misdemeanor  of  an  evil  and  vicious 
nature  was  indictable.  The  authorities  collected  in  the  notes  to  State 
V.  Butler,  8  Wash.  194,  35  Pac.  1093,  25  L.  R.  A.  434,  40  Am.  S't.  Rep. 
900,  embrace  cases  in  which  it  was  held  indictable  to  solicit  another  to 
make  a  plate  for  counterfeiting  bills  of  exchange,  to  commit  assault 
and  battery,  or  to  commit  perjury.  There  is  also  a  class  of  cases  fre- 
quently referred  to  in  the  discussion  of  this  question,  but  really  without 
bearing  on  it:  Solicitations  accompanied  with  the  offer  of  a  bribe,  of 
which  Rex  v.  Plympton,  2  Ld.  Raymond,  1377,  and  Rex  v.  Vaughan, 
4  Burr.  2494,  are  leading  instances.  In  these  the  act  sought  was  law- 
ful. The  offer  of  a  bribe  to  influence  its  performance  was  the  unlaw- 
ful feature. 

The  adjudications  by  the  highest  court  of  our  own  state,  on  the  sub- 
ject of  solicitation  to  commit  crime,  touch  it  only  at  two  points.  They 
decide  that  it  is  a  misdemeanor  to  solicit  the  commission  of  murder. 
Stabler  v.  Commonwealth,  95  Pa.  318,  40  Am.  Rep.  653;  Common- 
wealth V.  Randolph,  146  Pa.  83,  23  Atl.  388,  28  Am.  St.  Rep.  782 ; 
and  that  solicitation  to  commit  fornication  or  adultery  is  not  indictable, 
Smith  V.  Commonwealth,  54  Pa.  209,  93  Am.  Dec.  686.  The  latter 
case  does  not,  however,  go  to  the  length  of  declaring  that  solicita- 
tion to  commit  a  misdemeanor  is  not  a  misdemeanor.  No  general  rule 
on  the  subject  was  there  laid  down.  The  decision  was  based  on  the 
difficulty  of  defining  the  particular  offense  charged  in  the  case,  of  de- 
termining "what  expressions  of  the  face  or  double  entendres  of  the 
tongue,  what  freedom  of  manners,  are  to  be  adjudged  solicitation," 
and  on  the  principle  that  "a  rule  of  law  which  should  make  mere  solic- 
itation to  fornication  or  adultery  indictable  would  be  an  impracticable 
rule,  one  that  in  the  present  usages  and  manners  of  society  would 
lead  to  great  abuses  and  oppressions."  It  may  be  added  that  the  act 
charged  was  one  that  tended  only  to  secret  immorality  by  the  parties 
immediately  involved,  and  not  directly  to  the  public  prejudice. 

In  the  broad  field  lying  between  the  extremes  thus  adjudicated,  our 
guide  must  be  found  in  the  principles  that  underlie  our  Criminal  Code. 
To  reach  just  conclusions,  we  must  pursue  the  method  thus  laid  down 
by  Mr.  Justice  Paxson  in  Commonwealth  v.  McHale,  97  Pa.  397,  39 
Am.  Rep.  808,  and  applied  in  that  case :  "We  must  look  beyond  the 
cases  and  examine  the  principles  upon  which  common-law  offenses 
rest.     It  is  not  so  much  a  question  whether  such  offenses  have  been 


94  THE    OVERT    ACT — ATTEMPTS,  SOLICITATIONS,  AND  CONSPIRACY 

punished  as  whether  they  might  have  been.  *  *  *  We  are  of 
opinion  that  all  such  crimes  as  especially  affect  public  society  are  in- 
dictable at  common  law.  The  test  is,  not  whether  precedents  can  be 
found  in  the  books,  but  whether  they  injuriously  affect  the  public 
police  and  economy." 

The  distinction,  sometimes  attempted,  between  solicitation  to  com- 
mit a  felony  and  to  commit  a  misdemeanor,  is  based  on  an  artificial, 
and  not  an  intrinsic,  difference.  It  has  received  comparatively  slight 
judicial  recognition.  In  Reg.  v.  Ransford,  13  Cox,  C.  C.  9,  it  was  de- 
clared to  be  without  foundation.  Indeed,  the  statutory  classification 
of  crime  as  felony  or  misdemeanor  is  governed  by  no  fixed  or  definite 
principle,  but  is  purely  arbitrary.  Legislative  whim  or  caprice  may 
alone  determine  in  which  category  an  offense,  not  a  felony  at  com- 
mon law,  shall  be  placed.  There  is  no  reason,  arising  from  the  nature 
of  the  oft'enses,  why  the  burning  of  another's  house  shall  be  classed  as 
a  felony,  and  the  burning  of  one's  own  house  or  other  building  with  in- 
tent to  defraud  insurers,  as  a  misdemeanor ;  why  the  larceny  of  money 
shall  be  pronounced  a  felony,  and  its  embezzlement  only  a  misdemean- 
or; why  it  shall  be  deemed  a  felony  to  make  counterfeit  coin,  and  but 
a  misdemeanor  to  utter  it,  or  a  felony  to  attempt  to  utter  a  counterfeit 
bank  note,  and  only  a  misdemeanor  to  utter  counterfeit  coin ;  why  the 
possession  of  ten  counterfeit  bank  notes,  with  intent  to  utter  them, 
shall  be  declared  a  felony,  and  the  forgery  of  a  deed  merely  a  mis- 
demeanor; or  why  the  forgery  of  a  bank  check  shall  be  made  a 
felony,  and  the  forgery  of  a  promissory  note  but  a  misdemeanor. 
With  respect  to  the  public  police  and  economy,  and  the  general  inter- 
ests of  society,  there  are  misdemeanors  more  pernicious  in  effect  than 
some  of  the  felonies.  As  to  the  mode  and  incidents  of  trial  there  is  no 
distinction,  except  as  between  oft'enses  triable  exclusively  in  the  oyer 
and  terminer  and  those  within  the  jurisdiction  of  the  quarter  sessions. 
As  to  punishment,  trial  for  misdemeanor  may  subject  the  defend- 
ant to  punitive  consequences  more  serious  than  those  to  which  he  is 
exposed  in  trial  for  many  of  the  felonies,  since  the  penalty  is  often 
more  severe,  and,  even  if  acquitted,  the  costs  may  be  imposed  upon 
him.  It  is  obvious  that,  with  respect  to  the  majority  of  criminal  of- 
fenses, the  distinction  between  felonies  and  misdemeanors  rests  on 
no  substantial  basis,  and  that  the  classification  of  an  off'ense  as  a  felony 
or  a  misdemeanor  aft'ords  no  just  criterion  for  determining  whether 
solicitation  to  its  commission  is  indictable.  Under  such  a  test,  one  may 
be  punished  for  soliciting  the  theft  of  the  most  trifling  chattel,  or  the 
burning  of  the  most  worthless  dwelling,  yet  may  with  impunity  incite 
to  the  embezzlement  of  millions,  or  to  the  laying  in  ashes  of  the  largest 
manufactories,  or  the  entire  business  quarter  of  a  city.  The  only 
practical  and  reasonable  test  is  that  stated  and  applied  in  Common- 
wealth V.  McHale,  supra — the  manner  in  which  the  act  may  "affect 
the  public  police  and  economy" ;  and  the  only  logical  conclusion  is 


CONSPIRACY  9i> 

that  all  acts  which  "especially  affect  public  society,"  to  its  injury,  are 
criminal.  The  act  for  which  the  defendant  is  here  indicted,  as  thus  af- 
fecting public  society,  is  the  solicitation  described  in  the  indictment. 

Argument  is  scarcely  needed  to  demonstrate  that  the  solicitation 
charged  in  the  present  case  is  of  a  character  to  injuriously  affect  public 
society  and  the  public  police  and  economy.  Except  solicitations  to 
murder  and  riot,  nothing  is  more  calculated  to  disorder  and  terrorize 
society  than  incitements  to  incendiarism.  Such  incitement  is  a  direct 
blow  at  security  of  property,  and  even  of  life.  It  must  therefore  be 
pronounced  an  indictable  oft'ense.     *     *     * 

The  judgment  of  the  court  below  is  affirmed.     *     *     ♦ 


III.  Conspiracy  ' 


STATE  V.  BUCHANAN. 

(Court  of  Appeals  of  Maryland,  1821.    5  Har.  &  J.  317,  9  Am.  Dec.  534.) 

This  was  an  indictment  charging  the  defendants  in  the  second  count 
with  a  conspiracy  falsely,  fraudulently,  and  unlawfully,  by  wrong- 
ful and  indirect  means  to  cheat,  defraud,  and  impoverish  the  presi- 
dent, directors,  and  company  of  the  Bank  of  the  United  States.  To 
tliis  indictment  there  was  a  demurrer  that  the  matter  contained  in 
the  indictment  was  not  sufficient  to  sustain  the  prosecution.  The 
county  court  ruled  the  demurrer  good  (Dorsey,  C.  J.,  dissenting),  and 
discharged  the  defendants.  The  present  writ  of  error  was  brought 
on  the  part  of  the  state. 

The  case  was  argued  in  this  court  before  Chase:,  C.  J.,  and  Bucha- 
nan, EarlE,  and  Martin,  jj.     *     *     * 

Chase,  C.  J.^  *  *  *  I  think  it  may  be  assumed,  as  a  position 
which  cannot  be  controverted  and  is  free  from  doubt,  that  the  common 
law  of  England,  as  it  was  understood  at  the  time  of  the  Declaration 
of  Rights,  was  the  law  of  Maryland  ;  and  I  think  the  position  is  equal- 
ly clear  that  it  must  be  ascertained  by  the  writings  of  learned  men 
of  the  profession  and  by  the  judicial  records  and  adjudged  cases  of  the 
courts  of  England. 

7  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §§ 
58-60. 

8  The  indictment  is  abridged,  and  the  opinion  of  Buchanan,  J.,  and  part  of 
the  opinion  of  Chase,  C.  J.,  are  omitted. 


96  THE    OVERT   ACT — ATTEMPTS,  SOLICITATIONS,  AND  CONSPIRACY 

The  questions  now  occur :  Do  the  facts  contained  in  the  indictment 
constitute  the  crime  or  offense  of  conspiracy?  And  is  conspiracy  an 
offense  at  common  law,  indictable  and  punishable  as  such  ? 

Sergeant  Hawkins,  in  his  Pleas  of  the  Crown,  c.  72,  in  defining 
conspiracy  at  common  law,  makes  use  of  strong  and  explicit  lan- 
guage, and  says  there  can  be  no  doubt  but  that  all  confederacies  what- 
soever, wrongfully  to  prejudice  a  third  person,  are  highly  criminal 
at  common  law,  as  where  divers  persons  confederate  together  by  in- 
direct means  to  impoverish  a  third  person.  This  definition  is  cor- 
roborated and  supported  by  adjudged  cases  in  the  courts  of  England, 
and  especially  in  the  Court  of  King's  Bench. 

In  1  Lev.  125,  1  Burns'  Justice,  355,  Rex  v.  Sterling  and  Others, 
Brewers  of  London,  information  for  unlawfully  conspiring  to  im- 
poverish the  excisemen  by  making  orders  that  no  small  beer,  called 
gallon  beer,  should  be  made  for  a  certain  time,  etc.,  the  whole  court 
concurred  in  the  opinion,  and  gave  judgment  for  the  king. 

St.  33  Edw.  1,  de  conspiratoribus,  was  made  in  affirmance  of  the 
common  law,  and  is  a  final  definition  of  the  instances  or  cases  of  con- 
spiracy mentioned  in  it ;  but  certainly  it  does  not  comprehend  all  the 
cases  of  conspiracy  at  the  common  law,  which  is  most  apparent  from 
the  adjudged  cases  of  the  courts  of  England  on  that  subject. 

I  consider  the  adjudications  of  the  courts  of  England,  prior  to  the 
era  of  the  independence  of  America,  as  authority  to  show  what  the 
common  law  of  England  was,  in  the  opinion  of  the  judges  of  the 
tribunals  of  that  country,  and  since  that  time,  to  be  respected  as  the 
opinions  of  enlightened  judges  of  the  jurisprudence  of  England. 

The  better  opinion  appears  to  be  that  a  conspiracy  to  do  an  unlaw- 
ful act  is  an  indictable  offense,  although  the  object  of  the  conspiracy 
is  not  executed.  In  this  case  the  conspiracy  to  cheat,  defraud,  and 
impoverish  the  Bank  of  the  United  States,  by  appropriating  the  mon- 
eys, promissory  notes,  and  funds  of  the  bank  to  the  use  of  the  ac- 
cused, has  been  proved  by  the  admission  and  confession  of  the  de- 
fendants, and  a  consummation  of  all  the  overt  acts  has  been  fully  es- 
tablished. 

The  Poulterer's  Case,  9  Coke,  56,  57:  The  falsa  alligantia  is  a  false 
binding,  each  to  the  other,  by  bond  or  promise  to  execute  some  un- 
lawful act.  Before  the  unlawful  act  executed,  the  law  punishes  the 
coadjunction,  confederacy,  or  false  alliance,  to  the  end  to  prevent  the 
unlawful  act.  "Quia  quando  aliquid  prohibetur,  prohibetur  et  id  per 
quod  pervcnitur  ad  illud.  Et  effectus  punitur  licet  non  sequatur  ef- 
fectus."  And  in  these  cases  the  common  law  is  a  law  of  mercy,  for 
it  prevents  the  malignant  from  doing  mischief  and  the  innocent  from 
suffering  it.    The  defendants  were  punished  by  fine  and  imprisonment. 

I  think  it  is  established  by  the  decisions  of  the  courts  of  England 
that  a  conspiracy  to  cheat  is  an  offense  indictable  and  punishable  at 
common  law.    Rex  v.  Whcatly,  2  Burr.  1125.    A  cheat  or  imposition 


CONSPIRACY 


97 


by  one  person  only  is  not  indictable  at  common  law,  but  a  conspiracy 
to  cheat  by  two  or  more  is  indictable  at  common  law,  because  ordi- 
nary care  and  caution  is  no  guard  against  it.  Indictment  against 
Macarty  and  others,  for  a  combination  to  cheat  in  imposing  on  the 
prosecutor  stale  beer  mixed  with  vinegar  for  port  wine.  6  Mod.  301. 
Indictment  against  Cope  and  others,  for  a  conspiracy  to  ruin  the  trade 
of  the  prosecutor  by  bribing  his  apprentices  to  put  grease  into  the 
paste,  which  had  spoiled  his  cards.  1  Strange,  144.  Indictment 
against  Kinnersley  and  Moore,  for  a  conspiracy  to  charge  Lord  Sun- 
derland with  endeavoring  to  commit  sodomy  with  said  Moore,  in 
order  to  extort  money  from  Lord  Sunderland.  The  whole  court  gave 
judgment  in  support  of  the  indictment,  and  punished  Kinnersley  by 
fine,  imprisonment,  etc.,  and  sentenced  Moore  to  stand  in  the  pillory, 
suffer  a  year's  imprisonment,  and  to  give  security  for  his  good  be- 
havior, i  Stra.  193,  196.  Indictment  against  Rispal,  3  Burr.  1320: 
The  indictment  sets  forth  that  Rispal  and  two  others  did  wickedly  and 
unlawfully  conspire  among  themselves  falsely  to  accuse  John  Chilton 
with  having  taken  a  quantity  of  human  hair  out  of  a  bag,  etc.,  for 
the  purpose  of  exacting  and  extorting  money  from  the  said  John 
Chilton.  The  court  were  of  opinion  that  the  indictment  was  well  laid, 
and  that  the  gist  of  the  offense  is  the  unlawful  conspiring  to  injure 
Chilton  by  this  false  charge. 

A  combination  among  laborers  or  mechanics  to  raise  their  wages, 
is  a  conspiracy  at  common  law,  and  indictable  (8  Alod.  10),  although 
lawful  for  each  separately  to  raise  his  wages. 

I  consider  the  doctrine  so  firmly  established  by  the  decisions  of  the 
courts  of  England,  prior  to  the  era  of  our  independence,  that  a  com- 
bination or  confederacy  to  do  an  unlawful  act  is  a  conspiracy  indict- 
able and  punishable  at  common  law,  that  I  have  deemed  it  unneces- 
sary to  refer  to  all  the  cases  relative  to  this  question,  and  therefore 
have  contented  myself  with  citing  some  of  those  which  appear  to  me 
most  opposite. 

The  opinion  of  Lord  Ellenborough  in  Rex  v.  Turner  and  Others, 
13  East,  230,  does  not  impugn,  but  strongly  sanctions  and  confirms, 
this  doctrine.  He  says  the  cases  of  conspiracy  have  gone  far  enough. 
He  should  be  sorry  to  push  them  still  further.  The  charge  in  the  in- 
dictment was  for  committing  a  civil  trespass.  He  also  says  all  the 
cases  in  conspiracy  proceed  on  the  ground  that  the  object  of  the  con- 
spiracy is  to  be  effected  by  some  falsity. 

I  am  of  opinion  that  the  judgment  be  reversed,  and  the  demurrer 
overruled. 

Judgment  reversed. 

MiKELL  CaS.Cb.L. — 7 


08  OFFENSES   AGAINST   THE    PERSON 


OFFENSES  AGAINST  THE  PERSON 
I.  Homicide  in  General  ^ 


PEOPLE  V.  LEWIS. 

(Supreme  Court  of  California,  1899.    124  Cal.  551,  57  Pac.  470,  45  L.  R.  A.  783.) 

Temple,  J.^  The  defendant  was  convicted  of  manslaughter,  and 
appeals  from  the  judgment  and  from  an  order  refusing  a  new  trial. 
*  *  *  Defendant  and  deceased  were  brothers-in-law,  and  not  al- 
together friendly,  although  they  were  on  speaking  and  visiting  terms. 
On  the  morning  of  the  homicide  the  deceased  visited  the  residence  of 
the  defendant,  was  received  in  a  friendly  manner,  but  after  a  while 
an  altercation  arose,  as  a  result  of  which  defendant  shot  deceased  in 
the  abdomen,  inflicting  a  wound  that  was  necessarily  mortal.  Farrell 
fell  to  the  ground,  stunned  for  an  instant,  but  soon  got  up  and  went 
into  the  house,  saying:  "Shoot  me  again;  I  shall  die  anyway."  His 
strength  soon  failed  him,  and  he  was  put  to  bed.  Soon  afterward, 
about  how  long  does  not  appear,  but  within  a  very  few  minutes,  when 
no  other  person  was  present  except  a  lad  of  about  nine  years  of  age, 
nephew  of  the  deceased  and  son  of  the  defendant,  the  deceased  pro- 
cured a  knife  and  cut  his  throat,  inflicting  a  ghastly  wound,  from  the 
effect  of  which,  according  to  the  medical  evidence,  he  must  necessarily 
have  died  in  five  minutes.  The  wound  inflicted  by  the  defendant 
severed  the  mesenteric  artery,  and  medical  witnesses  testified  that  un- 
der the  circumstances  it  was  necessarily  mortal,  and  death  would  en- 
sue within  one  hour  from  the  effects  of  the  wound  alone.  Indeed, 
the  evidence  was  that  usually  the  effect  of  such  a  wound  would  be  to 
cause  death  in  less  time  than  that,  but  possibly  the  omentum  may  [have 
filled  the  wound,  and  thus,  by  preventing  the  flow  of  the  blood  from 
the  body,  have  stayed  its  certain  eft'ect  for  a  short  period.  Internal 
hemorrhage  was  still  occurring,  and,  with  other  effects  of  the  gunshot 
wound,  produced  intense  pain.  The  medical  witnesses  thought  that 
death  was  accelerated  by  the  knife  'wound.  Perhaps  some  of  them 
considered  it  the  immediate  cause  of  death. 

Now,  it  is  contended  that  this  is  a  case  where  one  languishing  from 
a  mortal  wound  is  killed  by  an  intervening  cause,  and,  therefore,  de- 

1  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §§ 
61,  G2. 

2  i-'art  of  the  opinion  is  omitted. 


HOMICIDE    IN    GENERAL  99 

ceased  was  not  killed  by  Lewis.  To  constitute  manslaughter,  the  de- 
fendant must  have  killed  some  one,  and  if,  though  mortally  wounded 
by  the  defendant,  Farrell  actually  died  from  an  independent  inter- 
vening cause,  Lewis,  at  the  most,  could  only  be  guilty  of  a  felonious 
attempt.  He  was  as  effectually  prevented  from  killing  as  he  would 
have  been  if  some  obstacle  had  turned  aside  the  bullet  from  its  course 
and  left  Farrell  unwounded.  And  they  contend  that  the  intervening 
act  was  the  cause  of  death,  if  it  shortened  the  life  of  Farrell  for  any 
period  whatever. 

The  Attorney  General  does  not  controvert  the  general  proposition 
here  contended  for,  but  argues  that  the  wound  inflicted  by  the  defend- 
ant was  the  direct  cause  of  the  throat  cutting,  and,  therefore,  de- 
fendant is  criminally  responsible  for  the  death.  He  illustrates  his 
position  by  supposing  a  case  of  one  dangerously  wounded  and  whose 
wounds  had  been  bandaged  by  a  surgeon.  He  says :  Suppose  through 
the  fever  and  pain  consequent  upon  the  wound  the  patient  becomes 
frenzied  and  tears  away  the  bandage  and  thus  accelerates  hrs  own 
death.  Would  not  the  defendant  be  responsible  for  a  homicide?  Un- 
doubtedly he  would  be,  for  in  the  case  supposed  the  deceased  died 
from  the  wound,  aggravated,  it  is  true,  by  the  restlessness  of  the 
deceased,  but  still  the  wound  inflicted  by  the  defendant  produced  death. 
Whether  such  is  the  case  here  is  the  question. 

The  Attorney  General  seems  to  admit  a  fact,  which  I  do  not  con- 
cede, that  the  gunshot  wound  was  not,  when  Farrell  died,  then  itself 
directly  contributory  to  the  death.  I  think  the  jury  were  warranted 
in  finding  that  it  was.  But  if  the  deceased  did  die  from  the  eft'ect  of 
the  knife  wound  alone,  no  doubt  the  defendant  would  be  responsible, 
if  it  was  made  to  appear,  and  the  jury  could  have  found  from  the 
evidence,  that  the  knife  wound  was  caused  by  the  wound  inflicted  by 
the  defendant  in  the  natural  course  of  events.  If  the  relation  was 
causal,  and  the  wounded  condition  of  the  deceased  was  not  merely  the 
occasion  upon  which  another  cause  inten^ened,  not  produced  by  the 
first  wound  or  related  to  it  in  other  than  a  casual  way,  then  defendant 
is  guilty  of  a  homicide.  But,  if  the  wounded  condition  only  afforded 
an  opportunity  for  another  unconnected  person  to  kill,  defendant 
would  not  be  guilty  of  a  homicide,  even  though  he  had  inflicted  a 
mortal  wound.  In  such  case,  I  think,  it  would  be  true  that  the  de- 
fendant was  thus  prevented  from  killing. 

The  case,  considered  under  this  view,  is  further  complicated  from 
the  fact  that  it  is  impossible  to  determine  whether  deceased  was  in- 
duced to  cut  his  throat  through  pain  produced  by  the  wound.  INIay  it 
not  have  been  from  remorse,  or  from  a  desire  to  shield  his  brother-in- 
law?  In  either  case  the  causal  relation  between  the  knife  wound  and 
the  gunshot  wound  would  seem  to  be  the  same.  In  either  case,  if 
defendant  had  not  shot  the  deceased,  the  knife  wound  would  not 
have  been  inflicted. 


100  OFFENSES   AGAINST   THE    PERSON 

Suppose  one  assaults  and  wounds  another,  intending-  to  take  life, 
but  the  wound,  though  painful,  is  not  even  dangerous,  and  the  wound- 
ed man  knows  that  it  is  not  mortal,  and  yet  takes  his  own  life  to  es- 
cape pain,  would  it  not  be  suicide  only?  Yet,  the  wound  inflicted  by 
the  assailant  would  have  the  same  relation  to  death  which  the  original 
wound  in  this  case  has  to  the  knife  wound.  The  wound  induced  the 
suicide,  but  the  wound  was  not,  in  the  usual  course  of  things,  the  cause 
of  the  suicide. 

Though  no  case  altogether  like  this  has  been  found,  yet,  as  was  to 
have  been  expected,  the  general  subject  has  often  been  considered. 
In  1  Hale's  Pleas  of  the  Crown,  428,  the  law  is  stated.  So  far  as 
material  here,  his  views  may  be  thus  summarized:  (1)  If  one  gives 
another  a  dangerous  wound,  which  might  by  very  skillful  treatment 
be  cured,  and  is  not,  it  is  a  case  of  homicide.  (2)  If  one  inflicts  a 
dangerous  wound,  and  the  man  dies  from  the  treatment,  "if  it  can 
clearly  appear  that  the  medicine  and  not  the  wound  was  the  cause  of 
the  death,  it  seems  it  is  not  homicide;  but  then  it  must  appear  clearly 
and  certainly  to  be  so."  (3)  If  one  receives  a  wound,  not  in  itself 
mortal,  and  fever  or  gangrene  sets  in  because  of  improper  treatment 
or  unruly  conduct  of  the  patient,  and  death  ensues,  it  is  homicide; 
"for  that  wound,  though  it  was  not  the  immediate  cause  of  his  death, 
yet  it  was  the  mediate  cause  thereof,  and  the  fever  or  gangrene  was 
the  immediate  cause  of  his  death,  yet  the  wound  was  the  cause  of  the 
gangrene  or  fever,  and  so,  consequently,  is  causa  causati."  (4)  One 
who  hastens  the  death  of  a  person  languishing  with  a  mortal  disease 
is  guilty  of  a  homicide;  for  the  death  is  not  merely  by  a  visitation 
of  Providence,  but  the  hurt  hastens  it  and  the  wrongdoer  cannot  thus 
apportion  the  responsibility,  et  cetera.  It  would  make  no  difl:erence, 
I  presume,  if  the  person  killed  was  languishing  from  a  mortal  wound, 
rather  than  from  an  ordinary  disease. 

In  State  v.  Scates,  50  N.  C.  420,  a  child  was  found  dead,  badly  burn- 
ed, and  with  a  wound  from  a  blow  on  the  head.  The  burning  was 
admitted  by  defendant,  but  the  blow  was  not,  and  it  was  not  proven 
who  inflicted  it.  The  medical  witness  thought  the  burning  was  the 
primary  cause  of  death,  but  the  blow  may  have  hastened  it.  The  jury 
was  told  that  if  it  was  doubtful  which  was  the  immediate  cause  of 
death  they  must  acquit,  but  if  they  found  that  the  burning  was  the 
primary  cause  of  death  and  the  blow  only  hastened  it  they  could 
convict. 

The  case  was  reversed,  the  appellate  court  holding  that  the  blow 
might  have  been  the  independent  act  of  another,  and,  if  it  hastened 
the  death,  it,  and  not  the  burning,  was  the  cause  of  death. 

In  Bush  V.  Commonwealth,  78  Ky.  268,  the  deceased  received  a 
wound  not  necessarily  mortal,  and,  in  consequence,  was  taken  to  a 
hospital,  where  she  took  scarlet  fever  from  a  nurse  and  died  of  the 
fever.     The  court  said:    "When  the  disease  is  a  consequence  of  ihe 


HOMICIDE    IN    GENERAL  101 

wound,  although  the  proximate  cause  of  the  death,  the  person  in- 
flicting the  wound  is  guihy,  because  the  death  can  be  traced  as  a 
result  naturally  flowing  from  the  wound  and  coming  in  the  natural 
order  of  things ;  but  when  there  is  a  supervcnin_g  cause,  not  naturally 
intervening  by  reason  of  the  wound,  the  death  is  by  visitation  of  Prov- 
idence, and  not  from  the  act  of  the  party  inflicting  the  wound. 
*  *  *  If  the  death  was  not  connected  with  the  wound  in  the  reg- 
ular chain  of  causes  and  consequences,  there  ought  not  to  be  any 
responsibility." 

The  last  case,  m  my  opinion,  so  far  as  it  goes,  correctly  states  the 
law.  The  facts  of  this  case  do  not  bring  it  strictly  within  any  of  the 
propositions  found  in  Hale's  Pleas  of  the  Crown.  The  second  and 
third  propositions  both  predicate  a  wound  not  necessarily  mortal. 
What  the  law  would  have  been  in  the  second  case,  had  the  wound  been 
mortal  and  the  applications  had  hastened  the  death,  is  not  stated.  It 
seems  to  me,  however,  the  case  of  a  person  already  languishing  from  a 
mortal  wound  is  precisely  that  of  one  suffering  from  a  mortal  dis- 
ease. Certainly  the  willful  and  unlawful  killing  of  such  a  person 
would  be  a  felony,  and  it  cannot  be  true  that  the  first  offender  and  the 
last  can  each  be  guilty  of  murdering  the  same  man — if  they  had  no 
connection  with  each  other,  and  both  wounds  were  not  actively  operat- 
ing to  produce  death  when  it  occurred. 

But  why  is  it  that  one  who  inflicts  a  wound  not  mortal  is  guilty 
of  a  homicide,  if  through  misconduct  of  the  patient  or  unskillful  treat- 
ment gangrene  or  fever  sets  in,  producing  a  fatal  termination,  when, 
if  it  can  be  clearly  made  to  appear  that  the  medicine  and  not  the  wound 
was  the  cause  of  the  death,  he  is  not  guilty  of  a  homicide?  In  each 
case  if  the  wound  had  not  been,  the  treatment  would  not  have  been, 
and  the  man  would  not  then  have  died.  In  each  case  the  wound  occa- 
sioned the  treatment  which  caused  or  contributed  to  the  death.  The 
reason,  I  think,  is  found  in  the  words  advisedly  used  in  the  last  sen- 
tence. In  the  one  case  the  treatment  caused  the  death,  and  in  the 
other  it  merely  contributed  to  it.  In  one  case  the  treatment  aggravated 
the  wound,  but  the  wound  thus  aggravated  produced  death.  In  the 
other  the  wound,  though  the  occasion  of  the  treatment  did  not  con- 
tribute to  the  death,  which  occurred  without  any  present  contribu- 
tion to  the  natural  effect  of  the  medicine  from  the  wound.  Take,  for 
instance,  the  giving  of  a  dose  of  morphine,  by  mistake,  sufficient  to  end 
life  at  once.  In  such  case  it  is  as  obvious  that  the  treatment  produced 
death  as  it  would  have  been  had  the  physician  cut  oft"  his  patient's 
head.  But  see  People  v.  Cook,  39  Mich.  236,  33  Am.  Rep.  380.  In 
this  case  it  appears  that  defendant  had  inflicted  a  dangerous  wound, 
but  it  was  contended  by  the  defense  that  death  was  caused  by  an  over- 
dose of  morphine.  Defendant  asked  an  instruction  as  follows :  "If 
the  jury  believe  that  the  injury  inflicted  by  the  prisoner  would  have 
been  fatal,  but  if  death  was  actually  produced  by  morphine  poisoning. 


102  OFFENSES   AGAINST   THE    PERSON 

they  must  acquit."  The  instruction  was  refused,  but  the  jury  were 
told  that  if  the  wound  was  not  in  itself  mortal,  and  death  was  caused 
solely  by  the  morphine,  they  must  acquit.  The  action  of  the  trial 
court  was  sustained,  on  the  ground  that  a  mortal  wound  had  been 
given  which  necessitated  medical  treatment,  that  the  physicians  were 
competent  and  acted  in  good  faith,  and  that  it  was  not  made  clearly 
to  appear  that  the  morphine  solely  produced  death,  and  that  the  wound 
did  not  at  all  contribute  to  the  death  at  that  time.  Under  the  authori- 
ties this  was  equivalent  to  the  finding  that  the  wound  did  not  con- 
tribute to  the  death. 

This  case  differs  from  that  in  this :  That  here  the  intervening  cause, 
which  it  is  alleged  hastened  death,  was  not  medical  treatment  de- 
signed to  be  helpful,  and  which  the  deceased  was  compelled  to  pro- 
cure because  of  the  wound,  but  was  an  act  intended  to  produce  death 
and  did  not  result  from  the  first  wound  in  the  natural  course  of  events. 
But  we  have  reached  the  conclusion  by  a  course  of  argument  un- 
necessarily prolix,  except  from  a  desire  to  fully  consider  the  earnest 
and  able  argument  of  the  defendant,  that  the  test  is — or  at  least  one 
test — whether,  when  the  death  occurred,  the  wound  inflicted  by  the 
defendant  did  contribute  to  the  event.  If  it  did,  although  other  inde- 
pendent causes  also  contributed,  the  causal  relation  between  the  un- 
lawful acts  of  the  defendant  and  the  death  has  been  made  out.  Here, 
when  the  throat  was  cut,  Farrell  was  not  merely  languishing  from 
a  mortal  wound.  He  was  actually  dying — and  after  the  throat  was 
cut  he  continued  to  languish  from  both  wounds.  Drop  by  drop  the 
life  current  went  out  from  both  wounds,  and  at  the  very  instant  of 
death  the  gunshot  wound  was  contributing  to  the  event.  If  the  throat 
cutting  had  been  by  a  third  person,  unconnected  with  the  defendant, 
he  might  be  guilty ;  for,  although  a  man  cannot  be  killed  twice,  two 
persons,  acting  independently,  may  contribute  to  his  death,  and  each 
be  guilty  of  a  homicide.  A  person  dying  is  still  in  life,  and  may  be 
killed ;  but,  if  he  is  dying  from  a  wound  given  by  another,  both  may 
properly  be  said  to  have  contributed  to  his  death.     *     *     * 

The  court  refused  to  instruct  the  jury  as  follows:  "If  you  believe 
from  the  evidence  that  it  is  impossible  to  tell  whether  Will  Farrell 
died  from  the  wound  in  the  throat  or  the  wound  in  the  abdomen,  you 
are  bound  to  acquit."  The  instruction  was  properly  refused.  It  as- 
sumed that  death  must  have  resulted  wholly  from  one  wound  or  the 
other,  and  ignored  the  proposition  that  both  might  have  contributed, 
as  the  jury  could  have  found  from  the  evidence.     *     *     * 

The  judgment  is  affirmed. 

McFarland    and  Henshaw,  JJ.,  concurred. 

Hearing  in  banc  denied. 


JUSTIFIABLE    HOMICIDE  103 


II.  Justifiable  Homicide  ' 


STOREY  V.  STATE. 

(Supreme  Court  of  Alabama,  1S82.     71  Ala.  329.) 

SoMURviLLE,  j,4  *  *  *  qpi-ig  record  contains  some  evidence  re- 
motely tending  to  show  that  the  prisoner  was  in  pursuit  of  the  de- 
ceased for  the  purpose  of  recapturing  a  horse,  which  the  deceased  had 
either  stolen,  acquired  by  fraud,  or  else  unlawfully  converted  to  his 
own  use. 

If  the  property  was  merely  converted,  or  taken  possession  of  in 
such  manner  as  to  constitute  a  civil  trespass,  without  any  criminal 
intent,  it  would  not  be  lawful  to  recapture  it  by  any  exercise  of  force 
which  would  amount  even  to  a  breach  of  the  peace,  much  less  a  felo- 
nious homicide.  Street  v.  Sinclair,  71  Ala.  110;  Burns  v.  Campbell, 
Id.  271. 

Taking  the  hypothesis  that  there  was  a  larceny  of  the  horse,  it 
becomes  important  to  inquire  what  would  then  be  the  rule.  The  lar- 
ceny of  a  horse  is  a  felony  in  this  state,  being  specially  made  so  by 
statute,  without  regard  to  the  value  of  the  animal  stolen.  Code  1876, 
§  4358.  The  fifth  charge  requested  by  the  defendant  is  an  assertion 
of  the  proposition  that  if  the  horse  was  feloniously  taken  and  carried 
away  by  the  deceased,  and  there  was  an  apparent  necessity  for  killing 
deceased  in  order  to  recover  the  property  and  prevent  the  consum- 
mation of  the  felony,  the  homicide  would  be  justifiable.  The  question 
is  thus  presented  as  to  the  circumstances  under  which  one  can  kill 
in  order  to  prevent  the  perpetration  of  a  larceny  which  is  made  a 
felony  by  statute — a  subject  full  of  difficulties  and  conflicting  expres- 
sions of  opinion  from  the  very  earliest  history  of  our  common-law 
jurisprudence. 

The  broad  doctrine  intimated  by  Lord  Coke  was  that  a  felon  may 
be  killed  to  prevent  the  commission  of  a  felony  without  any  inevitable 
cause,  or  as  a  matter  of  mere  choice  with  the  slayer.  3  Inst.  56.  If 
such  a  rule  ever  prevailed,  it  was  at  a  very  early  day,  before  the 
dawn  of  a  milder  civilization,  with  its  wiser  system  of  more  benignant 
laws ;  for  Blackstone  states  the  principle  to  be  that  "where  a  crime, 
in  itself  capital,  is  endeavored  to  be  committed  by  force,  it  is  lawful 
to  repel  that  force  by  the  death  of  the  party  attempting."  4  Com.  181. 
The  reason  he  assigns  is  that  the  law  is  too  tender  of  the  public  peace 

3  For  a  discussion  of  principles,  sec  Clark  on  Criminal  Law  (3d  Ed.)  §  65. 
*  Tlie  statement  of  facts  and  part  of  the  opinion  are  omitted. 


104  OFFENSES   AGAINST   THE   PERSON 

and  too  careful  of  the  lives  of  the  subjects  to  "suffer  with  impunity 
any  crime  to  be  prevented  by  death,  unless  the  same,  if  committed, 
would  also  be  punished  by  death." 

It  must  be  admitted  that  there  was  far  more  reason  in  this  rule 
than  the  one  intimated  by  Lord  Coke,  although  all  felonies  at  com- 
mon law  were  punishable  by  death,  and  the  person  killing,  in  such 
cases,  would  seem  to  be  but  the  executioner  of  the  law.  Both  of  these 
views,  however,  have  been  repudiated  by  the  later  authorities,  each 
being  to  some  extent  materially  modified.  All  admit  that  the  killing 
cannot  be  done  from  mere  choice ;  and  it  is  none  the  less  certain  that 
the  felony  need  not  be  a  capital  one  to  come  within  the  scope  of  the 
rule.  Gray  v.  Combs,  7  J.  J.  Marsh.  (Ky.)  478,  23  Am.  Dec.  431; 
Cases  on  Self-Defense  (Horr.  &  Thomp.)  725;  867 ;  Oliver  v.  State, 
17  Ala.  587 ;   Carroll  v.  State,  23  Ala.  28,  58  Am.  Dec.  282. 

We  find  it  often  stated,  in  general  terms,  both  by  text-writers  and 
in  many  well-considered  cases,  that  one  may,  as  Mr.  Bishop  expresses 
it,  "oppose  another  who  is  attempting  to  perpetrate  any  felony,  to  the 
extinguishment,  if  need  be,  of  the  felon's  existence."  1  Bish.  Cr.  Law, 
§§  849,  850;  State  v.  Rutherford,  8  N.  C.  457,  9  Am.  Dec.  658.  It 
is  observed  by  Mr.  Bishop,  who  is  an  advocate  of  this  theory,  that 
"the  practical  carrying  out  of  the  right  thus  conceded  is  in  some  cir- 
cumstances dangerous,  and  wherever  admitted  it  should  be  carefully 
guarded."     1  Bish.  Cr.  Law,  §  855. 

After  a  careful  consideration  of  the  subject  we  are  fully  persuaded 
that  the  rule  as  thus  stated  is  neither  sound  in  principle,  nor  is  it  sup- 
ported by  the  weight  of  modern  authority.  The  safer  view  is  that 
taken  by  Mr.  Wharton,  that  the  rule  does  not  authorize  the  killing 
of  persons  attempting  secret  felonies,  not  accompanied  by  force. 
Wharton  on  Hom.  §  539.  Mr.  Greenleaf  confines  it  to  "the  preven- 
tion of  any  atrocious  crime  attempted  to  be  committed  by  force,  such 
as  murder,  robbery,  house-breaking  in  the  nighttime,  rape,  mayhem, 
or  any  other  act  of  felony  against  the  person"  (3  Greenl.  Ev.  115); 
and  such  seems  to  be  the  general  expression  of  the  common-law  text- 
writers  (1  Russ.  Cr.  665-670;  4  Black.  Com.  178-180;  Whart.  Amer. 
Cr.  Law,  298-403;  1  East,  P.  C.  271;  1  Hale,  P.  C.  488;  Foster, 
274).  It  is  said  by  the  authors  of  Cases  on  Self-Defense,  that  a  kill- 
ing which  "appears  to  be  reasonably  necessary  to  prevent  a  forcible 
and  atrocious  felony  against  property  is  justifiable  homicide."  "This 
rule,"  it  is  added,  "the  common-law  writers  do  not  extend  to  secret 
felonies,  or  felonies  not  accompanied  with  force,"  although  no  modern 
case  can  be  found  expressly  so  adjudging.  They  further  add:  "It 
is  pretty  clear  that  the  right  to  kill  in  defense  of  property  does  not 
extend  to  cases  of  larceny,  which  is  a  crime  of  a  secret  character,  al- 
though the  cases  which  illustrate  this  exception  are  generally  cases 
of  theft  of  articles  of  small  value."  Cases  on  Self-Defense  (Horr.  & 
Thomp.),  901,  902.     This  was  settled  in  Reg.  v.  Murphy,  2  Crawf. 


JUSTIFIABLE    HOMICIDE  105 

&  Dix,  C.  C.  20,  where  the  defendant  was  convicted  of  shooting  one 
detected  in  feloniously  carrying  away  fallen  timber  which  he  had 
stolen  from  the  premises  of  the  prosecutor ;  the  shooting  being  done 
very  clearly  to  prevent  the  act,  which  was  admitted  to  be  a  felony. 
Doherty,  C.  J.,  said :  "I  cannot  allow  it  to  go  abroad  that  it  is  lawful 
to  fire  upon  a  person  committing  a  trespass  and  larceny;  for  that 
would  be  punishing,  perhaps  with  death,  offenses  for  which  the  law 
has  provided  milder  penalties."  This  view  is  supported  by  the  follow- 
ing cases:  State  v.  Vance,  17  Iowa,  144,  McClelland  v.  Kay,  14  B. 
Mon.  (Ky.)  106,  and  others  not  necessary  to  be  cited.  See  Cases  on 
Self-Defense,  p.  901,  note.     *     *     * 

It  cannot  be  questioned,  however,  that  if  there  was  in  truth  a  larceny 
of  the  prisoner's  horse,  he  or  any  other  private  person  had  a  lawful 
right  to  pursue  the  thief  for  the  purpose  of  arresting  him  and  of  re- 
capturing the  stolen  property.  Code  1876,  §§  4668-4670;  1  Bish. 
Cr.  Proc.  §§  164,  165.  He  is  not  required  in  such  case  to  inform  the 
party  fleeing  of  his  purpose  to  arrest  him,  as  in  ordinary  cases.  Code 
1876,  §  4669.  And  he  could,  if  resisted,  repel  force  with  force,  and 
need  not  give  back  or  retreat.  If  under  such  circumstances  the  party 
making  resistance  is  unavoidably  killed,  the  homicide  would  be  jus- 
tifiable. 2  Bish.  Cr.  Law,  §  647;  1  Russ.  Cr.  665;  State  v.  Roane,  13 
N.  C.  58.  If  the  prisoner's  purpose  was  honestly  to  make  a  pursuit, 
he  would  not  for  this  reason  be  chargeable  with  the  imputation  of  hav- 
ing wrongfully  brought  on  the  difficulty;  but  the  law  would  not  per- 
mit him  to  resort  to  the  pretense  of  pursuit  as  a  mere  colorable  de- 
vice beneath  which  to  perpetrate  crime.     *     *     * 

There  are  some  other  questions  raised  in  the  record  which  we  do 
not  think  necessary  to  discuss.  The  judgment  of  the  circuit  court 
must  be  reversed,  and  the  cause  remanded  for  a  new  trial.  In  the 
meanwhile  the  prisoner  will  be  retained  in  custody  until  discharged 
by  due  process  of  law. 


CARROLL  V.  STATE. 
(Supreme  Court  of  Alabama,  1853.    23  Ala.  28,  58  Am.  Dec.  282.) 

GoivDTHWAiTE,  J.^  We  will  first  consider  the  questions  presented 
by  the  refusal  of  the  court  to  give  the  charge  requested.     *     *     * 

A  mere  civil  trespass  upon  a  man's  house,  unaccompanied  with  such 
force  as  to  make  it  a  breach  of  the  peace,  w^ould  not  be  a  provocation 
which  would  reduce  the  killing  to  manslaughter,  if  it  was  done  under 
circumstances  from  which  the  law  would  imply  malice,  as  with  a  dead- 
ly weapon.  For  trespasses  with  force  it  may  be  murder  or  manslaugh- 
ter, according  to  the  circumstances.     The  owner  may  resist  the  entry, 

6  Tlie  statement  of  facts  aud  part  of  the  opinion  are  omitted. 


106  OFFENSES  AGAINST  THE  PEKSON 

but  he  has  no  right  to  kill,  unless  it  be  rendered  necessary  to  prevent 
a  felonious  destruction  of  his  property,  or  to  defend  himself  against 
loss  of  life  or  great  bodily  harm.  If  he  kills  when  there  is  not  a  rea- 
sonable ground  of  apprehension  of  imminent  danger  to  his  person  or 
property,  it  is  manslaughter,  and  if  done  with  malice,  express  or  im- 
plied, it  is  then  murder. 

The  rule  as  to  the  extent  of  protection  to  the  dwelling  being  ascer- 
tained, there  is  but  little  difficulty  in  its  application  to  the  facts  as  stat- 
ed upon  the  record.  It  is  conceded  most  fully  that,  if  the  evidence 
shows  an  assault  upon  the  house  or  the  person  under  circumstances 
which  would  create  a  reasonable  apprehension — that  is,  a  just  appre- 
hension in  the  mind  of  a  reasonable  man — of  the  design  to  commit  a 
felony  with  force,  or  to  inflict  a  personal  injury  which  might  result 
in  loss  of  life  or  great  bodily  harm,  the  danger  of  the  design  being 
carried  into  execution  being  imminent  and  present,  the  person  in  whose 
mind  such  an  apprehension  is  induced,  and  over  whose  person  or  prop- 
erty such  danger  is  impending,  may  lawfully  act  upon  appearances  and 
kill  the  assailant.  The  law  in  such  a  case  would  not  require  that  the 
danger  should  be  real,  that  the  peril  should  actually  exist ;  but  it  does 
require  that  the  appearances  should  be  such  as  would  excite  a  reason- 
able apprehension  of  such  peril,  and  if  such  appearances  do  not  exist 
the  killing  would  be  either  murder  or  manslaughter. 

Assuming,  therefore,  that  the  deceased  came  to  his  death  by  the  act 
of  the  prisoner,  and  by  the  use  of  a  deadly  weapon,  and  in  the  aspect 
of  the  case  as  presented  by  the  charge  requested,  the  question  is  sim- 
ply whether  the  act  was  done  under  the  necessity,  real  or  apparent, 
which  the  law  requires.     If  it  was  not,  it  follows  necessarily  that  the 
prisoner  was  guilty  either  of  murder  or  manslaughter ;    and,  if  there 
was  any  evidence  which  tended  to  show  that  such  necessity  existed,  the 
charge  requested  should  have  been  given.     Without  referring  to  the 
evidence  in  detail,  it  is  sufficient  to  observe  that  the  bill  of  exceptions 
shows  that  none  was  ofl^ered  of  any  act  of  violence  on  the  part  of  the 
deceased,  either  in  making  the  entry  into  the  house,  or  after  it  had  been 
made,  unless  the  entry  itself,  after  he  had  been  warned  not  to  enter, 
might  be  regarded  as  an  act  of  violence.     When  the  law  speaks  of  a 
forcible  trespass,  it  means  such  a  trespass  as  would  amount  to  a  breach 
of  the  peace.     Entering  the  house  after  a  warning  had  been  given 
would  have  aggravated  the  trespass ;    but,  if  done  without  force,  it 
would  not  have  been  a  breach  of  the  peace.     The  whole  evidence, 
therefore,  consisted  of  the  previous  threats  made  by  the  deceased  and 
the  trespass  committed  by  him.    The  threats,  however,  did  not  change 
the  character  of  the  trespass  and  convert  it  into  a  trespass  with  force. 
We  have  seen  that,  although  a  forcible  trespass  upon  the  dwelling 
house  may  in  some  cases  authorize  the  killing  of  the  assailnnt,  yet  it  is 
not  every  invasion  even  of  this  character  upon  a  man's  dwelling  which 
will  reduce  the  killing  to  manslaughter.     The  charge  requested  refer- 


JUSTIFIABLE    HOMICIDE 


107 


red  solely  to  the  right  of  the  prisoner  to  protect  the  possession  of  his 
house,  and  the  circumstances,  therefore,  must  tend  to  prove  a  reason- 
able apprehension  on  his  part  of  the  existence  of  such  a  state  of  facts 
as  would  relieve  him  from  the  crime  of  murder.  Taken  in  connection 
with  the  evidence,  then,  the  charge  asserted  the  proposition  that,  where 
the  evidence  established  only  a  trespass  without  force,  it  tended  to  cre- 
ate a  reasonable  apprehension,  not  only  that  it  was  committed  with 
force,  but  under  such  circumstances  as  would  be  sufficient  to  reduce 
the  killing  to  manslaughter.  We  think  there  was  no  error  in  the  re- 
fusal of  this  charge.     *     *     * 

There  is  no  error  in  the  record,  and  the  judgment  is  affirmed. 


STATE  V.  MORGAN. 
(Supreme  Court  of  North  Carolina,  1S42.    25  N.  C.  186,  38  Am.  Dec.  714.) 

Gaston,  j.s  *  *  *  Assuming,  then,  that  the  constable  had 
wrongfully  taken  the  gun,  and  that  the  defendant  had  a  right  to  re- 
quire its  return,  and  that  exertion  of  force,  nothing  short  of  that  which 
was  begun  on  the  part  of  the  defendant,  would  have  availed  to  compel 
its  return,  in  our  opinion  the  assault  is  not  justified.  It  was  made  with 
a  deadly  weapon,  which,  if  used,  would  have  probably  occasioned 
death,  and  made  without  any  previous  resistance  on  the  part  of  the  of- 
ficer. It  was,  therefore,  an  assault  with  intent  to  kill.  If  this  intent 
were  lawful,  the  assault  with  that  intent  was  lawful.  If  this  intent 
were  unlawful,  an  assault  with  that  intent  cannot  stand  justified.  Now, 
when  it  is  said  that  a  man  may  rightfully  use  as  much  force  as  is  nec- 
essary for  the  protection  of  his  person  or  property,  it  should  be  recol- 
lected that  this  rule  is  subject  to  this  most  important  modification:  that 
he  shall  not,  except  in  extreme  cases,  endanger  human  life  or  do  great 
bodily  harm. 

It  is  not  every  right  of  person,  and  still  less  of  property,  that  can 
lawfully  be  asserted,  or  every  wrong  that  may  rightfully  be  redressed, 
by  extreme  remedies.  There  is  a  recklessness,  a  wanton  disregard  of 
humanity  and  social  duty,  in  taking  or  endeavoring  to  take  the  life  of 
a  fellow  being,  in  order  to  save  one's  self  from  a  comparatively  slight 
wrong,  which  is  essentially  wicked,  and  which  the  law  abhors.  You 
may  not  kill,  because  you  cannot  otherwise  efifect  your  object,  although 
the  object  sought  to  be  effected  is  right.  You  can  only  kill  to  save  life 
or  limb,  or  prevent  a  great  crime,  or  to  accomplish  a  necessary  public 
duty.  Thus  an  officer,  acting  under  a  legal  process,  has  a  right  to  ar- 
rest the  person  against  whom  it  is  directed,  and  retake  him,  if  he  break 

«  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


108  OFFENSES   AGAINST   THE   PERSON 

custody;  and  for  such  purpose  he  may  and  ought  to  use  necessary 
force.  Yet,  if  the  process  be  in  a  civil  case,  or  for  a  misdemeanor  only, 
and  the  officer,  although  he  cannot  otherwise  arrest  or  retake  his  pris- 
oner, intentionally  kills  him,  it  is  murder.  1  Hale,  481 ;  Foster,  271 ; 
1  East,  P.  C.  c.  5,  §§  306,  307.  The  purpose  is  indeed  rightful,  but  it 
is  not  one  of  such  paramount  necessity  as  to  justify  a  resort  to  such 
desperate  means.  So  it  is  clear  that  if  one  man  deliberately  kills  an- 
other to  prevent  a  mere  trespass  on  his  property,  wrhether  that  tres- 
pass could  or  could  not  be  otherwise  prevented,  he  is  guilty  of  murder. 
If>  indeed,  he  had  at  first  used  moderate  force,  and  this  had  been  re- 
turned wuth  such  violence  that  his  own  life  was  endangered,  and  then 
he  killed  from  necessity,  it  would  have  been  excusable  homicide ;  not 
because  he  could  take  life  to  save  property,  but  he  might  take  the  life 
of  the  assailant  to  save  his  own. 

If  these  principles  be  right,  and  we  think  they  cannot  be  contested, 
it  would  follow  that,  if  unfortunately  the  rage  of  the  defendant  in  this 
case  had  not  been  pacified,  and  the  fatal  blow  had  fallen  and  death 
ensued,  it  would  have  been  a  clear  case  of  murder.  If  so,  then  the  as- 
sault made  was  an  assault  with  intent  to  commit  murder.  A  justifia- 
ble assault  with  intent  to  commit  murder  is  a  legal  solecism. 

This  opinion  must  be  certified  to  the  superior  court  of  Henderson, 
with  instructions  to  render  judgment  for  the  state  upon  the  special  ver- 
dict. 

P£:r  Curiam.     Ordered  accordingly. 


MORRISON  V.  COMMONWEALTH. 

(Court  of  Appeals  of  Kentucky,  1903.    74  S.  W.  277,  24  Ky.  Law  Rep.  2493.) 

HoBSON,  j,7  *  *  *  fYiQ  cj^gg  comes  to  this :  Did  Morrison, 
when  he  saw  Alex  Dean  committing  an  assault  on  his  sister,  and  push- 
ing or  striking  her  against  the  house,  have  a  right  to  intervene  between 
tlie  brother  and  sister  for  her  protection  from  a  simple  battery?  In  1 
Bishop  on  Criminal  Law,  §  877,  it  is  said :  "The  doctrine  here  is  that 
whatever  one  may  do  for  himself  he  may  do  for  another.  The  com- 
mon case,  indeed,  is  where  a  father,  son,  brother,  husband,  servant, 
or  the  like,  protects  by  the  stronger  arm  the  feebler.  But  a  guest  in 
the  house  may  defend  the  house,  or  the  neighbors  of  the  occupant  may 
assemble  for  its  defense;  and,  on  the  whole,  though  distinctions  have 
been  taken  and  doubts  expressed,  the  better  view  plainly  is  that  one 
may  do  for  another  whatever  the  other  may  do  for  himself."  This 
statement  of  the  law,  as  applied  to  simple  batteries  and  breaches  of 

7  I'art  of  tlie  opinion  is  omitted. 


JUSTIFIABLE    HOMICIDE 


101) 


the  peace,  is  broader  than  it  is  usually  put  in  the  authorities.  Thus, 
in  3  Bl.  Com.  3,  it  is  said :  "The  defense  of  one's  self,  or  the  mutual 
and  reciprocal  defense  of  such  as  stand  in  relations  of  husband  and 
wife,  parent  and  child,  master  and  servant.  In  these  cases,  if  the 
party  himself,  or  any  of  these,  his  relations,  be  forcibly  attacked  in 
his  person  or  property,  it  is  lawful  for  him  to  repel  force  by  force ;  and 
the  breach  of  the  peace  which  happens  is  chargeable  upon  him  only 
who  began  the  affray."  In  a  note  to  this  it  is  added :  "When  a  per- 
son does  not  stand  in  either  of  these  relations,  he  cannot  justify  an 
interference  on  behalf  of  the  party  injured,  but  merely  as  an  indift"er- 
ent  person  to  preserve  the  peace."  See,  to  the  same  effect,  2  Am.  & 
Eng.  Enc.  Law,  p.  981 ;   2  Roberson,  Criminal  Law,  §  543. 

When  a  felony  is  apparently  about  to  be  committed,  as  where  there 
is  apparent  danger  of  loss  of  life  by  the  person  assailed,  or  of  great 
bodily  harm  to  him,  a  dift"erent  rule  prevails,  and  there  any  third  per- 
son may  lawfully  intervene  for  his  protection,  using  such  means  for 
his  defense  as  the  person  assaulted  himself  may  lawfully  use.  But 
where  the  assault  is  not  felonious,  and  the  person  intervening  does  not 
stand  in  any  of  the  relations  to  the  one  assaulted  excepted  out  of  the 
common-law  rule,  then  he  who  intervenes  can  only  act  for  the  preser- 
vation of  the  peace.  He  cannot  come  into  the  difficulty  for  the  pur- 
pose of  taking  the  place  of  the  person  assailed  and  continuing  the  fight. 
This  is  the  common-law  rule,  as  we  understand  the  "authorities,  and 
we  cannot  depart  from  it  or  extend  it. 

It  is  conceded  on  all  hands  that  Morrison  ran  down  on  tiptoe  to 
where  Alex  Dean  and  his  sister  were,  some  90  feet  away.  If,  when 
he  got  there,  he  at  once  stabbed  Dean  in  the  back,  as  stated  by  the 
witnesses  for  the  commonwealth,  he  was  the  aggressor.  The  instruc- 
tion of  the  court,  which  submitted  to  the  jury  the  question  whether 
Morrison  beheved,  or  had  reasonable  grounds  to  believe,  himself  in 
danger  of  death  or  great  bodily  harm  at  the  hands  of  Dean,  when  he 
stabbed  him,  was  more  favorable  to  Morrison  than  the  law  warranted, 
as  the  court  did  not  submit  to  the  jury  the  question  whether  Morrison 
was  the  aggressor.  Morrison  knew  that  the  illicit  relations  between 
him  and  Ida  Dean  were  the  foundation  of  the  animosity  of  Alex  Dean 
to  him.  He  also  knew  that  this  was  the  cause  of  the  quarrel  between 
the  brother  and  sister.  With  this  knowledge  he  ran  on  tiptoe  down 
to  where  they  were,  armed  with  a  dirk ;  and  if,  as  he  says,  he  caught 
Alex  Dean  by  the  shoulder  and  shoved  them  apart,  saying  to  him, 
"You  can't  beat  her  where  I  am,"  his  interference  was  not  as  an  in- 
different person  to  preserve  the  peace,  for  his  first  act  was  to  commit 
a  battery  on  Alex  Dean  by  taking  him  by  the  shoulder,  and  this  was 
followed  up  by  a  declaration  which  he  could  but  know,  under  all  the 
circumstances,  would  make  Alex  Dean  regard  him  as  an  assailant.  To 
hold  that  he  intervened,  under  the  evidence,  as  an  indifferent  person 
to  preserve  the  peace,  would  be  to  give  no  real  effect  to  the  common- 


110  OFFENSES    AGAINST   THE    PERSON 

law  rule  allowing  greater  rights  to  parent  and  child,  husband  and  wife, 
master  and  servant,  or  the  like,  than  to  other  persons  in  cases  of  sim- 
ple batteries  or  breaches  of  the  peace.  According  to  his  own  testimony, 
the  manner  of  his  approach,  his  conduct  on  reaching  Alex  Dean,  and 
his  declaration  to  him,  under  the  circumstances,  were  not  those  of  one 
bent  on  peace,  but  of  one  proposing  to  champion  the  woman  and  fight 
her  battles  for  her.  He  was,  therefore,  the  aggressor,  and  the  court 
did  not  err  in  refusing  to  admit  the  proof  as  to  the  bad  character  of 
Alex  Dean  or  his  previous  threats;  and  this  evidence,  if  admitted, 
could  not  have  been  of  material  service  to  the  defendant  under  the  view 
of  the  law  which  we  have  indicated,  for  the  jury  might  have  inferred 
that,  when  he  interfered  with  knowledge  of  the  previous  threats  and 
the  character  of  Dean,  he  anticipated  the  result  that  ensued. 

The  verdict  of  the  jury  finding  him  guilty  of  manslaughter,  and  fix- 
ing his  punishment  at  11  years  in  the  penitentiary,  seems  to  have  been 
due  to  their  accepting  the  version  of  the  transaction  as  given  by  the 
witnesses  for  the  commonwealth,  and  their  believing  that  Morrison 
acted  in  sudden  heat  on  seeing  the  woman  assailed  by  her  brother. 
Judgment  affirmed. 

NuNN,  J.,  dissents. 


III.  Excusable  Self-Defense  ' 


GOODALL  V.  STATE. 

(Supreme  Court  of  Oregon,  1861.    1  Or.  338,  SO  Am.  Dec.  396.) 

Boice;,  j.8  *  *  *  The  next  question  in  this  case  arises  on  the 
several  instructions  of  the  judge  as  to  what  would  justify  the  taking 
of  life  in  self-defense,  and  all  there  is  on  the  sul)ject  in  the  instructions 
may  be  considered  together.  After  instructing  the  jury  in  the  lan- 
guage of  the  statute,  the  court  said:  "To  justify  a  killing  in  self-de- 
fense it  was  necessary  that  an  assault  should  have  been  committed  by 
the  person  killed ;  that  it  was  not  enough  that  the  party  killed  had  a 
pistol  in  his  hand,  but  that  there  must  have  been  a  presentation  of  it, 
or  some  demonstration  of  shooting."  The  court  also  said  that  "the 
having  a  drawn  pistol  in  his  hand  by  deceased  would  not  be  enough, 
although  deceased  had  threatened  to  take  the  life  of  the  prisoner,  and 
these  threats  had  been  communicated  to  him." 

I   understand,  by  these   instructions,  that  the  court  held   the  law 

8  For  a  discussion  of  principles,  see  Clark  on  Criminal  I^aw  (od  Ed.)  §  68. 

9  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


EXCUSABLE   SELF-DEFENSE 


m 


to  be  that  an  actual  assault  with  the  pistol  was  necessary  to  justify 
the  killing,  which  means  that  there  must  have  been  on  the  part  of  the 
deceased  an  attempt  to  shoot  the  prisoner,  and  until  such  attempt 
was  made  the  prisoner  would  not  have  been  justified  in  acting  on  the 
defensive  and  in  shooting  the  deceased,  although  deceased  appeared 
before  him  with  a  drawn  pistol  and  had  threatened  his  life.  If  such 
be  the  law,  then  there  is  no  such  thing  as  available  self-defense — when 
the  assailant  makes  his  attack  with  a  pistol  or  other  kind  of  firearm ; 
for  the  assault  and  discharge  of  the  weapon  are  simultaneous,  or  so 
nearly  so,  that  resistance  would  be  almost  impossible.  Suppose  A., 
who  has  threatened  the  life  of  B.,  appears  to  B.  suddenly,  at  the  house 
of  the  latter,  at  an  unusual  place,  armed  with  a  gun,  and  in  a  threaten- 
ing attitude,  and  B.,  induced  by  the  previous  threats  and  unusual  ap- 
pearance of  his  adversary,  and  believing  his  own  life  in  imminent 
danger,  and  having  himself  a  pistol,  shoots  A.  and  kills  him,  before 
A.  actually  makes  an  attempt  to  level  his  gun.  Would  this  be  mur- 
der? I  think  not.  Such  a  case,  unchanged  by  other  evidence  than 
the  killing,  would  lack  all  indications  of  malicious  intent,  which  is 
necessary  to  constitute  murder. 

If  B.  under  such  circumstances,  acting  from  appearances,  and  be- 
lieving that  he  was  in  actual  and  imminent  danger  of  death  or  great 
bodily  harm,  should  kill  A.,  I  think  he  w^ould  be  justified.  By  the  com- 
mon law  one  acting  from  appearances  in  such  a  case,  and  beheving 
the  apparent  danger  imminent,  would  be  justified,  though  it  after- 
wards turned  out  that  there  was  no  real  danger,  and  that  the  gun  of  the 
assailant  was  only  loaded  with  powder.  This  is,  certainly,  as  strong 
a  case  for  justification  as  when  one,  alarmed  in  the  night  by  the  cry  of 
thieves,  rushes  forth  in  the  dark,  and  by  mistake  kills  an  innocent 
person ;  and  in  such  a  case  the  slayer  would  be  excused  at  common 
law.  Such  was  the  dictum  in  the  Levett  Case,  which  has  been  ap- 
proved by  the  English  commentators.  1  East,  P.  C.  274;  1  Russell 
on  Crimes,  669. 

In  the  case  before  us  there  was  evidence  tending  to  show  that  when 
the  prisoner  first  saw  deceased,  at  the  time  the  fatal  shots  were  dis- 
charged, deceased  had  a  pistol  in  his  hand  and  was  standing  on  the 
doorstep  of  the  prisoner's  private  room  which  was  an  unusual  place 
for  one  who  had  threatened  the  prisoner's  life,  and  whom  he  consid- 
ered his  enemy.  And  I  think  the  court  should  have  instructed  the 
jury  that  if  they  believed,  from  the  evidence  in  the  case,  that  there  was 
reasonable  ground  for  Goodall  to  believe  his  life  in  danger,  or  that 
he  was  in  danger  of  great  bodily  harm  from  the  deceased,  and  that 
such  danger  was  imminent,  and  he  did  so  believe,  and,  acting  on  such 
belief,  killed  the  deceased,  he  was  excusable,  and  that  it  was  not  neces- 
sary that  he  should  wait  until  an  assault  was  actually  committed. 

The  whole  doctrine  of  self-defense  was  most  ably  examined  and 
illustrated  in  the  case  of  Thomas  O.  Selfridge,  tried  in  the  Supreme 


112  OFFENSES   AGAINST   THE   PERSON 

Court  of  Massachusetts ;  and  the  doctrines  of  that  case  were  adopted 
in  the  state  of  New  York  in  the  case  of  Shorter  v.  People,  2  N.  Y. 
193,  51  Am.  Dec.  286,  where  it  is  declared  by  Bronson,  J.,  in  speak- 
ing of  the  same  case,  ''that  when,  from  the  nature  of  the  attack,  there 
is  "reasonable  ground  to  believe  that  there  is  a  design  to  destroy  his 
life,  or  commit  any  felony  upon  his  person,  the  killing  the  assailant 
will  be  excusable  homicide,  although  it  should  afterwards  appear  that 
no  felony  was  intended."  "To  this  doctrine,"  says  the  learned  judge, 
"I  fully  subscribe.  A  different  rule  would  lay  too  heavy  a  burden  on 
poor  humanity."  He  further  says  that  the  authority  of  the  Selfridge 
Case  was  followed  by  the  revisors  in  framing  the  statutes  of  New 
York  touching  this  question.  And  our  statute  is  a  copy  of  the  Nev/ 
York  statute,  and,  if  the  doctrine  is  properly  applicable  there,  then  it 
is  applicable  here  also. 

As  to  what  will  constitute  reasonable  grounds  of  belief  in  such 
cases,  sufficient  to  justify  taking  life,  must  depend,  to  a  considerable 
extent,  on  the  circumstances  of  each  particular  case.  And  the  rea- 
sonableness of  the  appearances  under  which  a  party  claims  to  justify 
may  very  properly  be  left  to  a  jury,  under  the  instructions  of  the  court. 
And  I  think  it  is  going  too  far  to  lay  down  the  general  rule  that  an 
actual  assault  must  be  committed ;  for  such  a  rule  would  take  away, 
or  at  least  render  almost  unavailable,  the  right  of  self-defense  when 
firearms  are  used. 

It  is  also  assigned  as  error  that  the  court  instructed  the  jury  "that, 
killing  being  admitted  by  the  accused,  it  devolved  on  him  to  prove  that 
he  was  justifiable."  I  think  this  instruction  in  conformity  with  the 
common  law ;  but  it  is  not  necessary  to  examine  the  common-law  au- 
thorities on  this  subject,  for  our  statute,  in  the  fourth  seotion  of  the 
third  chapter,  provides :  "There  shall  be  some  other  evidence  of  malice 
than  the  mere  proof  of  killing,  to  constitute  murder  in  the  first  or 
second  degree."  This,  I  think,  is  conclusive  on  this  subject;  for  it 
was  the  evident  intention  of  the  Legislature,  by  this  statute,  to  impose 
on  the  prosecution  some  further  burden  than  the  mere  proof  of  the 
killing  to  establish  the  malice,  which,  under  our  statute,  is  not  to  be 
presumed  from  the  mere  proof  of  the  killing,  and  I  think  the  instruc- 
tion of  the  court  was  error. 

There  is  another  ground  of  error  assigned,  which  is  that  the  court 
erred  in  permitting  the  declarations  of  Potts  to  be  given  in  evidence, 
made  to  his  son  prior  to  the  killing,  and  declaring  the  reason  why 
he  was  going  to  the  house  of  Aldrich,  where  he  was  killed.  I  thmk 
this  evidence  was  improperly  admitted,  and  that  the  only  declarations 
of  the  deceased  which  are  competent  are  dying  declarations,  or  those 
which  are  a  part  of  the  res  gestae. 
Judgment  is  reversed. 


EXCUSABLE    SELF-DEFENSE  113 


STATE  V.  GARDNER. 

(Supreme  Court  of  Minnesota,  1905.     9G  Minn.  318,  104  N.  W.  97L 

2  L.  R.  A.  [N.  S.]  49.) 

Jaggard,  ].,^°     *     *     *     delivered  the  opinion  of  the  court. 

The  assignments  of  error  raise  many  questions  as  to  the  correct- 
ness of  the  charge  of  the  court.  The  court  charged,  inter  aha:  "But 
to  justify  the  taking  of  hvunan  hfe  in  self-defense  it  must  appear  from 
all  the  evidence  that  the  defendant  not  only  really  and  in  good  faith 
endeavored  to  avoid  an  encounter  and  to  escape  from  his  assailant 
before  the  fatal  shot  was  fired.  *  *  *  The  right  to  defend  him- 
self by  taking  the  life  of  his  assailant  would  not  arise  until  the  de- 
fendant had  at  least  attempted  to  avoid  the  necessity  of  such  an  act; 
but  in  this  connection  I  also  charge  you  that  when  he  is  assailed  or 
threatened  he  is  not  necessarily  bound  to  retreat,  and  whether,  under 
the  circumstances  of  this  case,  the  defendant  was  justified  in  doing 
what  he  did,  is  a  matter  for  you  to  determine,  and  not  for  the  court  to 
decide."  We  are  of  the  opinion  that  this  charge  was  erroneous  in  it- 
self (Perkins  v.  State,  78  Wis.  551,  47  N.  W.  827;  Shell  v.  State, 
88  Ala.  14,  7  South.  40),  and  was  not  applicable  to  the  facts  proved. 
The  common-law  doctrine  of  "retreat  to  the  wall"  is  thus  referred  to 
in  a  frequently  quoted  paragraph  from  Coke  (3  Inst.  55) :  "Some 
be  voluntary,  and  yet  being  done  upon  an  inevitable  cause  are  no 
felony;  as  if  A.  be  assaulted  by  B.,  and  they  fight  together,  and  be- 
fore any  mortal  blow  given,  A.  giveth  back  until  he  cometh  unto  a 
hedge,  wall,  or  other  strait,  beyond  which  he  cannot  pass,  and  then,  in 
his  own  defense,  and  for  safeguard  of  his  own  life,  killeth  the  other ; 
this  is  voluntary,  and  yet  no  felony."  The  rule  on  this  subject  has 
tended  in  some  American  jurisdictions  to  be  enforced  with  strictness ; 
in  others,  to  be  largely  modified,  in  accordance  with  changed  condi- 
tions, and,  indeed,  to  be  positively  relaxed.  See  State  v.  Matthews, 
148  Mo.  185,  49  S.  W.  1085,  71  Am.  St.  Rep.  598;  Runyan  v.  State, 
57  Ind.  80,  84,  26  Am.  Rep.  52.  In  a  leading  case  (Erwin  v.  State, 
29  Ohio  St.  186,  23  Am.  Rep.  733),  after  a  review  of  the  common- 
law  authorities,  in  consequence  of  this  confusion  in  the  later  cases, 
the  court,  inter  alia,  said :  "The  question  then,  is  simply  this :  Does 
the  law  hold  a  man  who  is  violently  and  feloniously  assaulted  respon- 
sible for  having  brought  such  necessity  upon  himself,  on  the  sole 
ground  that  he  failed  to  fly  from  his  assailant  when  he  might  have 
safely  done  so?  The  law,  out  of  tenderness  for  human  life  and  the 
frailties  of  human  nature,  will  not  permit  the  taking  of  it  to  repel  a 
mere  trespass,  or  even  to  save  life  where  the  assault  is  provoked ;  but 
a  true  man,  who  is  without  fault,  is  not  obliged  to  fly  from  an  as- 

10  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 
MiKELL  Cas.Cr^L. — 8 


114  OFFENSES   AGAINST   THE   PERSON 

sailant,  who  by  violence  or  surprise  maliciously  seeks  to  take  his 
life  or  do  him  enormous  bodily  harm."  The  Supreme  Court  of  the 
United  States  approved  of  this  rule  and  of  Runyan  v.  State,  supra, 
in  1895,  in  Beard  v.  United  States,  158  U.  S.  550,  15  Sup.  Ct.  962,  39 
L.  Ed.  1086.     *     *     * 

In  Rowe  v.  United  States,  164  U.  S.  546,  17  Sup.  Ct.  172,  41  L. 
Ed.  547,  the  defendant,  a  Cherokee  Indian,  had  an  altercation  with  the 
deceased  at  a  hotel.  After  a  quarrel  at  the  supper  table  the  accused 
swore  at  the  deceased  and  kicked  him.  The  accused  then  leaned 
up  against  the  counter,  as  if,  according  to  his  own  testimony,  he  had 
abandoned  the  controversy.  Immediately  the  deceased  sprang  at 
him  with  a  knife,  cutting  him.  Thereupon  the  accused  shot  and  killed 
his  assailant.  The  trial  court  charged  in  a  carefully  qualified  way 
as  to  the  duty  of  retreat.  Mr.  Justice  Harlan,  inter  alia,  said :  "The 
accused  was  entitled,  so  far  as  his  right  to  resist  the  attack  was  con- 
cerned, to  remain  where  he  was,  and  to  do  whatever  was  necessary, 
or  what  he  had  reasonable  grounds  to  believe  at  the  time  was  neces- 
sary, to  save  his  life  or  to  protect  himself  from  great  bodily  harm ; 
and,  under  the  circumstances,  it  was  error  to  make  the  case  depend, 
in  whole  or  in  part,  upon  the  inquiry  whether  the  accused  could,  by 
stepping  aside,  have  avoided  the  attack,  or  could  have  so  carefully 
aimed  his  pistol  as  to  paralyze  the  arm  of  his  assailant,  without  more 
seriously  wounding  him."  This  accords  with  the  general  law  on  the 
subject.  Harbour  v.  State,  140  Ala.  103,  V  South.  330;  People  v. 
Newcomer,  118  Cal.  263,  50  Pac.  405;  State  v.  Cushing,  14  Wash. 
527,  45  Pac.  145,  53  Am.  St.  Rep.  883 ;  Babcock  v.  People,  13  Colo. 
515,  22  Pac.  817;  Brown  v.  Commonwealth,  86  Va.  466,  10  S.  E. 
745;  State  v.  Cain,  20  W.  Va.  679;  State  v.  Evans,  33  W.  Va.  417, 
10  S.  E.  792;  Commonwealth  v.  Selfridge  (1806;  Mass.)  Horn  & 
T.  Cas.  1 ;  Pond  v.  People,  8  Mich.  150;  People  v.  Macard,  71  Mich. 
15,  40  N.  W.  784;  State  v.  Bartlett,  170  Mo.  658,  71  S.  W.  148,  59  L. 
R.  A.  756;  Willis  v.  State,  43  Neb.  102,  61  N.  W.  254;  25  Am.  & 
Eng.  Enc.  Law  (2d  Ed.)  p.  272,  note  2. 

The  rule  of  law  in  this  state  is  not  inconsistent  with  this  conception 
of  the  duty  to  retreat  so  far  as  is  involved  in  the  case  at  bar.     *     *     * 

The  doctrine  of  "retreat  to  the  wall"  had  its  origin  before  the  gen- 
eral introduction  of  guns.  Justice  demands  that  its  application  have 
due  regard  to  the  present  general  use  and  to  the  type  of  firearms.  It 
would  be  good  sense  for  the  law  to  require,  in  many  cases,  an  at- 
tempt to  escape  from  a  hand  to  hand  encounter  with  fists,  clubs,  and 
even  knives,  as  a  condition  of  justification  for  killing  in  self-defense; 
while  it  would  be  rank  folly  to  so  require  when  experienced  men,  arm- 
ed with  repeating  rifles,  face  each  other  in  an  open  space,  removed 
from  shelter,  with  intent  to  kill  or  to  do  great  bodily  harm.  What 
might  be  a  reasonal:)le  chance  for  escape  in  the  one  situation  might  in 
the  other  be  certain  death.     Self-defense  has  not,  by  statute  or  by 


EXCUSABLE   SELF-DEFENSE  115 

judicial  opinion,  been  distorted,  by  an  unreasonable  requirement  of 
the  duty  to  retreat,  into  self-destruction. 

In  the  case  at  bar  one  of  the  theories  of  the  state  was  that  the  de- 
fendant shot  Garrison  while  he  was  at  work  leaning  over  the  poles. 
In  this  view  the  charge  as  to  escape  was  not  involved,  and  the  sub- 
ject should  not  have  been  referred  to.  It  became  relevant  only  in 
the  consideration  of  the  defendant's  narrative  of  the  tragedy.  Ac- 
cording to  that  narrative,  the  accused  knew  of  the  threats  made  by 
Garrison  to  kill  him.  Garrison  was  only  30  feet  away  from  his  rifle, 
leaning  against  the  house  or  a  log.  Defendant  had  more  than  100 
paces  to  travel  before  he  could  reach  the  poplars  surrounding  Garri- 
son's curtilage.  An  attempted  retreat  finally  must  have  resulted  in 
exposing  him  to  a  duel  with  a  dead  shot  like  Garrison.  It  would  not 
have  been  reasonable  to  have  required  him  to  have  undertaken  to 
reach  and  take  Garrison's  gun.  Garrison,  the  larger  man,  would,  as 
he  said,  have  broken  him  in  two  before  he  could  have  secured  it  and 
protected  himself.  It  was  apparently  as  dangerous  for  him  to^  re- 
treat as  to  stand  his  ground.  Duncan  v.  State,  49  Ark.  543,  547, 
548,  6  S.  W.  164.  To  use  the  expression  of  Chief  Justice  Gilfillan, 
referred  to,  if  the  jury  believed  the  defendant's  narrative,  he  had  no 
"practicable  means  to  avoid  threatened  harm  by  an  attempt  to  escape 
or  retreat.  He  had  no  reasonable  way  open  to  retreat  without  in- 
creasing his  peril."  Harbour  v.  State,  supra.  He  had  "come  to  a 
strait."  Coke,  Inst,  supra.  The  fact  that  Gardner  carried  his  gun  did 
not  justify  giving  tbe  instruction.  His  contention  was  that  this  was 
in  accordance  with  a  natural  and  the  general  custom  of  the  wild  and 
unsettled  wilderness  in  which  he  lived.  Moreover,  as  was  held  in 
People  V.  Macard,  supra,  a  person  knowing  his  hfe  to  be  threaten- 
ed and  believing  himself  to  be  in  danger  of  death  or  great  bodily 
harm,  is  not  obliged  to  remain  at  home  in  order  to  avoid  an  assault, 
but  may  arm  himself  sufficiently  to  repel  anticipated  attack  and  pur- 
sue his  legitimate  avocation ;  and  if,  without  fault,  he  is  compelled  to 
take  life  to  save  himself,  he  may  use  any  weapon  he  may  have  secured 
for  that  purpose,  and  the  homicide  is  excusable.  And  see  Bohannon  v. 
Commonwealth,  8  Bush  (Ky.)  481,  8  Am.  Rep.  474.  It  was  accord- 
ingly reversible  error,  in  .any  view  of  the  case,  for  the  trial  court  to 
have  charged  upon  the  subject  of  escape  or  retreat.     *     *     * 

The  judgment  and  order  appealed  from  are  reversed,  and,  in  accord- 
ance with  section  7391,  Gen.  St.  1894,  a  new  trial  is  directed.     *     *     * 


IIG  ,  OFFENSES    AGAINST   THE   PERSON 


PEOPLE  V.  BUTTON. 

(Supreme  Court  of  California,  1895.     106  Cal.  628,  39  Pac.  1073,  28  L.  R.  A. 

591,  46  Am.  St.  Rep.  259.) 

GarouTTE,  J.^^  The  appellant  was  charged  with  the  crime  of  mur- 
der, and  convicted  of  manslaughter.  He  now  appeals  from  the  judg- 
ment and  order  denying  his  motion  for  a  new  trial. 

For  the  perfect  understanding  of  the  principle  of  law  involved  in 
this  appeal  it  becomes  necessary  to  state  in  a  general  way  the  facts 
leading  up  to  the  homicide.  As  to  the  facts  thus  summarized  there  is 
no  material  contradiction.  The  deceased,  the  defendant,  and  several 
other  parties  were  camped  in  the  mountains.  They  had  been  drinking, 
and,  except  a  boy,  were  all  under  the  influence  of  liquor  more  or  less 
— the  defendant  to  some  extent,  and  the  deceased  to  a  great  extent. 
The  deceased  was  lying  on  the  ground,  with  his  head  resting  upon  a 
rock,  when  a  dispute  arose  between  him  and  the  defendant,  and  the 
defendant  thereupon  kicked  or  stamped  him  in  the  face.  The  assault 
was  a  vicious  one,  and  the  injuries  of  deceased  occasioned  thereby 
most  serious.  One  eye  was  probably  destroyed,  and  some  bones  of 
the  face  broken.  An  expert  testified  that  these  injuries  were  so  serious 
as  likely  to  produce,  in  the  injured  man  a  dazed  condition  of  mind  im- 
pairing the  reasoning  faculties,  judgment,  and  powers  of  perception. 
Immediately  subsequent  to  this  assault  the  defendant  went  some  dis- 
tance from  the  camp,  secured  his  horse,  returned,  and  saddled  it,  with 
the  avowed  intention  of  leaving  the  camp  to  avoid  further  trouble. 
The  time  thus  occupied  in  securing  his  horse  and  preparing  for  de- 
parture may  be  estimated  at  from  5  to  15  minutes.  The  deceased's 
conduct  and  situation  during  the  absence  of  defendant  is  not  made 
plain  by  the  evidence,  but  he  was  probably  still  lying  where  assaulted. 
At  this  period  of  time,  the  deceased  advanced  upon  defendant  with  a 
knife,  which  was  taken  from  him  by  a  bystander,  whereupon  he  seiz- 
ed his  gun  and  attempted  to  shoot  the  defendant,  and  then  was  him- 
self shot  by  the  defendant  and  immediately  died.  There  is  also  some 
further  evidence  that  deceased  ordered  his  dog  to  attack  the  defend- 
ant, and  that  defendant  shot  at  the  dog;  but  this  evidence  does  not 
appear  to  be  material  to  the  question  now  under  consideration. 

Upon  this  state  of  facts  the  court  charged  the  jury  as  to  the  law  of 
the  case,  and  declared  to  them  in  various  forms  the  principle  of  law 
which  is  fairly  embodied  in  the  following  instruction :  "One  who  has 
sought  a  combat  for  the  purpose  of  taking  advantage  of  another  may 
afterward  endeavor  to  decline  any  further  struggle,  and,  if  he  really 
and  in  good  faith  does  so  before  killing  the  person  with  whom  he 
sought  the  combat  for  such  purpose,  he  may  justify  the  killing  on  the 

11  Part  of  the  opinion  is  omitted. 


EXCUSABLE  SELF-DEFENSE  117 

same  ground  as  he  might  if  he  had  not  originally  sought  such  combat 
for  such  purpose,  provided  that  you  also  believe  that  his  endeavor 
was  of  such  a  character,  so  indicated  as  to  have  reasonably  assured  a 
reasonable  man  that  he  was  endeavoring  in  good  faith  to  decline  fur- 
ther combat,  unless  you  further  believe  that  in  the  same  combat  in 
which  the  fatal  shot  was  fired,  and  prior  to  the  defendant  endeavoring 
to  cease  further  attack  or  quarrel,  the  deceased  received  at  the  hands 
of  the  defendant  such  injuries  as  deprived  him  of  his  reason  or  his 
capacity  to  receive  impressions  regarding  defendant's  design  and  en- 
deavor to  cease  further  combat."     *     *     * 

Knowledge  of  the  withdrawal  of  the  assailant  in  good  faith  from 
the  combat  must  be  brought  home  to  the  assailed.  He  must  be  noti- 
fied in  some  way  that  danger  no  longer  threatens  him  and  that  all 
fear  of  further  harm  is  groundless.  Yet,  in  considering  this  ques- 
tion the  assailed  must  be  deemed  a  man  of  ordinary  understanding. 
He  must  be  gauged  and  tested  by  the  common  rule — a  reasonable  man. 
His  acts  and  conduct  must  be  weighed  and  measured  in  the  light  of 
that  test,  for  such  is  the  test  applied  wherever  the  right  of  self-defense 
is  made  an  issue.  His  naturally  demented  condition  will  not  excuse 
him  from  seeing  that  his  assailant  has  withdrawn  from  the  attack  in 
good  faith.  Neither  his  passion  nor  his  cowardice  will  be  allowed  to 
blind  him  to  the  fact  that  his  assailant  is  running  away  and  all  dan- 
ger is  over.  If  the  subsequent  acts  of  the  attacking  party  be  such  as 
to  indicate  to  a  reasonable  man  that  he  in  good  faith  has  withdrawn 
from  the  combat,  they  must  be  held  to  so  indicate  to  the  party  attack- 
ed. Again,  the  party  attacked  must  also  act  in  good  faith.  He  must 
act  in  good  faith  toward  the  law,  and  allow  the  law  to  punish  the 
offender.  He  must  not  continue  the  combat  for  the  purpose  of  wreak- 
ing vengeance,  for  then  he  is  no  better  than  his  adversary.  The  law 
will  not  allow  him  to  say,  "I  was  not  aware  that  my  assailant  had 
withdrawn  from  the  combat  in  good  faith,"  if  a  reasonable  man  so 
placed  would  have  been  aware  of  such  withdrawal.  If  the  party  as- 
sailed has  eyes  to  see  he  must  see,  and  if  he  has  ears  to  hear  he  must 
hear.     He  has  no  right  to  close  his  eyes  or  deaden  his  ears. 

This  brings  us  directly  to  the  consideration  of  the  point  in  the 
case  raised  by  the  charge  of  the  court  to  the  jury.  While  the  de- 
ceased had  eyes  to  see  and  ears  to  hear,  he  had  no  mind  to  compre- 
hend, for  his  mind  was  taken  from  him  by  the  defendant  at  the  first 
assault.  Throughout  this  whole  affray,  it  must  be  conceded  that  the 
deceased  was  guilty  of  no  wrong,  no  violation  of  the  law.  When  he 
attempted  to  kill  the  defendant  he  thought  he  was  acting  in  self-de- 
fense, and  according  to  his  lights  he  was  acting  in  self-defense.  To 
be  sure,  those  lights,  supplied  by  a  vacant  mind,  were  dim  and  un- 
satisfactory, yet  they  were  all  the  deceased  had  at  the  time,  and  not 
only  were  furnished  by  the  defendant  himself,  but  the  defendant,  in 
furnishing  them,   forcibly  and  unlawfully  deprived  the  deceased  of 


118  OFFENSES    AGAINST   THE    PERSON 

Others  which  were  perfect  and  complete.  But  where  does  the  defend- 
ant stand?  It  cannot  be  said  that  he  was  guilty  of  no  wrong,  no  vio- 
lation of  the  law.  It  was  he  who  made  the  vicious  attack.  It  was 
he  who  was  guilty  of  an  unprovoked  and  murderous  assault.  It  was  he 
who  unlawfully  brought  upon  himself  the  necessity  for  killing  the  de- 
ceased. It  cannot  be  possible  that  in  a  combat  of  this  character  no 
crime  has  been  committed  against  the  law.  Yet  the  deceased  has 
committed  no  offense.  Neither  can  the  defendant  be  prosecuted  for 
an  assault  to  commit  murder,  for  the  assault  resulted  in  the  commis- 
sion of  a  homicide  as  a  part  of  the  affray.  For  these  reasons  we  con- 
sider that  the  defendant  cannot  be  held  guiltless. 

Some  of  the  earlier  writers  hold  that  one  who  gives  the  first  blow 
cannot  be  permitted  to  kill  the  other,  even  after  retreating  to  the  wall, 
for  the  reason  that  the  necessity  to  kill  was  brought  upon  himself.  1 
Hawkins'  Pleas  of  the  Crown,  87.  While  the  humane  doctrine,  and 
especially  the  modern  doctrine,  is  more  liberal  to  the  assailant,  and 
allows  him  an  opportunity  to  withdraw  from  the  combat,  if  it  is  done 
in  good  faith,  yet  it  would  seem  that  under  the  circumstances  here 
presented  the  more  rigid  doctrine  should  be  applied.  The  defend- 
ant not  only  brought  upon  himself  the  necessity  for  the  killing,  but, 
in  addition  thereto,  brought  upon  himself  the  necessity  of  killing  a 
man  wholly  innocent  in  the  eyes  of  the  law;  not  only  wholly  inno- 
cent as  being  a  person  naturally  non  compos,  but  wholly  innocent  by 
being  placed  in  this  unfortunate  condition  of  mind  by  the  act  of  the 
defendant  himself.  We  conclude,  therefore,  that  the  instruction  con- 
tains a  sound  principle  of  law.  The  defendant  was  the  first  wrong- 
doer. He  was  the  only  wrongdoer.  He  brought  on  the  necessity  for 
the  killing,  and  cannot  be  allowed  to  plead  that  necessity  against  the 
deceased,  who  at  the  tim'e  was  non  compos  by  reason  of  defendant's 
assault.  The  citations  we  have  taken  from  Hale,  the  Ohio  case,  and 
the  Nevada  case,  all  declare  that  the  assailant  must  notify  the  assailed 
of  his  withdrawal  from  the  combat  in  good  faith  before  he  will  be 
justified  in  taking  life.  Here  the  defendant  did  not  so  notify  the  de- 
ceased. He  could  not  notify  him,  for  by  his  own  unlawful  act  he 
had  placed  it  out  of  his  power  to  give  the  deceased  such  notice.  Un- 
der these  circumstances  he  left  no  room  in  his  case  for  the  plea  of 
self-defense.     *  .  *     * 

For  the  foregoing  reasons,  the  judgment  and  order  are  reversed, 
and  the  cause  remanded  for  a  new  trial. 

Beatty,  C.  J.,  and  Harrison,  McFarland,  and  Van  Flui-t,  JJ., 
concurred. 


MUKDER — MALICE   AFORETHOUGHT  119 


IV.  Murder — Malice  Aforethought 


12 


PENNSYLVANIA  v.  HONEYMAN. 

(County  Court  of  Allegheny,  1793.    Add.  [Pa.]  147.) 

Honeyman  was  indicted  for  the  murder  of  Benjamin  Askins.  on  23d 
November,  1793.  Askins,  Honeyman,  and  two  others.  Ward  and 
Paris,  had  been  drinking  together,  and  were  dancing  in  Askins'  house. 
Ward  shoved  Paris,  who  complained  of  it.  Ward  asked  if  he  resent- 
ed it.  Askins  said  if  he  did  not,  he  would ;  and  he  threw  off  his 
clothes,  and  struck  at  Ward,  who  kept  off  the  blow,  and  left  the  house. 
Honeyman  called  after  him  to  come  back  and  see  it  out,  and  he  would 
see  fair  play.  Ward  would  not.  Floneyman  turned  to  Askins,  said, 
"You  are  a  damned  rascal  to  strike  a  man  before  he  is  ready," 
knocked  him  down,  stamped  on  him,  and  beat  him.  Two  or  three 
times,  as  Askins  raised  himself  to  his  knee,  Honeyman  knocked  him 
down,  telling  him,  "Ben,  if  you  know  when  you  are  well,  lie  still." 
Askins  died  the  next  day  of  the  bruises.  He  was  a  puny,  weak  man ; 
Honeyman  was  a  stout  young  fellow. 

Brackenridge  and  Carson,  for  the  defendant.  Fighting  on  a  sud- 
den quarrel,  and  killing,  is  only  manslaughter.  We  admit  this  is  man- 
slaughter. Though  implied  malice  be  sufficient  to  make  the  killing 
murder,  still  there  must  be  malice.  If  there  be  no  circumstances  of 
malignity,  or  if  the  killing  be  sudden,  or  with  a  weapon  not  likely  to 
kill,  there  is  no  ground  for  implying  malice.  Here  there  is  no  deliber- 
ate design.  The  parties  were  in  liquor.  Askins  and  Honeyman  were 
on  terms  of  friendship.  Askins  violated  the  peace  in  his  own  house. 
Honeyman  wanted  to  repress  him,  and  what  he  did  was  in  defense  of 
his  friend. 

Galbraith,  for  the  state,  contended  that  from  the  evidence,  and 
the  law  arising  out  of  it,  the  killing  was  murder. 

PrESIDE^nt.  The  unfortunate  ground  of  this  crime  is  that  riotous 
intemperance,  so  dangerous  on  all  occasions,  especially  in  unguarded 
and  unprincipled  company. 

This  is  not  justifiable  homicide,  not  having  happened  in  the  dis- 
charge of  any  duty ;  nor  is  it  excusable,  not  having  happened  in  self- 
defense,  or  by  accident.  It  must,  therefore,  be  felonious  homicide; 
and  the  question  is  whether  it  is  murder  or  manslaughter. 

Prima  facie,  every  killing  is  murder,  for  malice  is  presumed,  im- 
less  the  prisoner  show  extenuating  circumstances,   which  take  away 

12  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §§ 
71,  72. 


120  OFFENSES   AGAINST   THE    PERSON 

the  presumption  of  malice.  If  there  be  no  mahce,  it  is  Lut  manslaugh- 
ter. If  there  be  express  malice,  or  malice  implied  in  the  circumstances 
of  the  transaction,  it  is  murder.  The  distinction  between  murder  and 
manslaughter  is  nice;  and  cases  lying  on  the  borders  of  both  have 
been  often,  and  long  and  earnestly,  disputed,  and  doubtfully  decided. 
Hence  so  many  special  verdicts,  to  find  whether  manslaughter  or  mur- 
der. 

I  have  said  that  every  voluntary  killing,  or  every  act  which  ap- 
parently must  do  harm,  which  is  done  with  intent  to  do  harm,  and 
done  without  provocation,  and  of  which  d^ath  is  the  consequence,  is 
murder ;  for  provocation  is  not  presumed,  and  malice  is  presum- 
ed. The  law  implies  malice,  and  the  defendant  must  show  provo- 
cation, to  rebut  the  presumption  of  malice.  But  malice  may  be  more 
than  implied ;  it  may  be  express.  Malice  express  is  a  deliberate  or 
formed  design  of  taking  away  the  life  of  another,  or  of  doing  him 
some  bodily  mischief ;  and  this  may  be  manifested  either  by  words  or 
actions.  Implied  malice  is  collected  either  from  the  manner  of  the 
killing,  or  from  the  person  killed,  or  the  person  killing.  In  willful 
poisoning,  in  killing,  though  undesignedly,  by  a  voluntary  act,  ap- 
parently mischievous,  or  in  killing  without  provocation,  malice  is 
implied  from  the  manner  of  the  act;  and  it  is  not  necessary  that  the 
malice  should  have  existed  long  before.  It  is  sufficient,  if  it  exist 
at  the  time.  Malice,  as  used  in  the  definition  of  murder,  is  a  techni- 
cal expression,  and  not  to  be  taken  in  the  common  sense  of  that  word. 
In  common  acceptation,  malice  is  taken  to  be  a  settled  anger  in  one 
person  against  another,  and  a  desire  of  revenge.  But  in  this  legal 
or  technical  acceptance  it  imports  a  wickedness,  which  includes  a 
circumstance  attending  an  act,  that  cuts  off  all  excuse.  It  is  used  as 
synonymous  to  frowardness  of  mind,  and  means  that  the  fact  hath 
been  attended  with  such  circumstances  as  are  the  ordinary  symptoms 
of  a  wicked,  depraved,  malignant  spirit,  the  plain  indications  of  a 
heart  regardless  of  social  duty,  and  fatally  bent  upon  mischief. '  It  is 
a  design  of  doing  mischief,  a  voluntary  cruel  act.  Malice,  therefore, 
is  implied  in  every  act  of  killing  for  which  there  is  no  legal  justifica- 
tion, excuse,  or  extenuation. 

The  excuse  for  murder  arises  from  authority  not  wantonly  or  cruelly 
exercised  or  abused,  or  from  the  infirmity  of  the  human  constitution. 
A  father  may  correct  his  child,  or  a  master  his  servant,  apprentice, 
or  scholar,  in  a  reasonable  manner;  and  if  an  accidental  death  ensue 
it  is  only  manslaughter,  or  perhaps  homicide  per  infortunium.  But 
if  the  correction  be  unreasonable,  with  unusual  or  im.proper  weapons, 
or  with  extraordinary  circumstances  of  cruelty,  and  if  death  be  the 
consequence  of  it,  such  killing  is  murder.  Such  would  be  the  case  of 
a  killing,  by  any  person,  in  the  preservation  of  the  peace.  If  one, 
having  no  authority  over  another,  but  provoked  to  passion  by  an  act 
of  personal  violence,  in  his  passion  beat  the  person  thus  violently 


MURDER— MALICE   AFORETIIOOGnT  121 

provoking  him,  and  by  such  beating  kill  him,  it  is  but  manslaughter. 
Passion  excludes  the  presumption  of  malice.  But  if  the  provocation 
was  not  sufficient,  or,  whatever  it  might  have  been,  if  there  was  no 
passion  excited,  or,  though  excited,  if  there  was  time  for  the  passion 
to  cool,  and  it  had  subsided,  the  killing  is  murder.  Cool  expressions, 
wanton  and  deliberate  or  unusual  cruelty,  are  evidences  of  want  of 
passion,  and  are  therefore  evidences  of  malice.  Suddenly  interfering, 
in  favor  of  a  friend  engaged  in  combat  with  another,  and  killing  the 
other  in  defense  of  this  friend,  has  been  held  but  manslaughter.  This 
must  be  on  the  supposition  of  passion  excited  by  the  danger  of  the 
person  in  whose  favor  the  killer  interferes  in  the  quarrel. 

The  jury  are  the  judges  whether  the  facts  be  true  or  not.  The 
court  must  judge  of  what  description  the  crime  is,  which  those  facts 
compose,  whether  murder,  manslaughter,  or  inferior  homicide;  for 
that  is  defining  or  explaining  what  the  law  is,  and  this  is  the  duty  of 
the  court. 

It  becomes  our  duty,  therefore,  to  say,  on  the  supposition  that  the 
facts  stated,  and  not  contradicted  here,  were  what  really  happened, 
whether  they  amount  to  manslaughter  only,  or  to  murder.  This  de- 
pends on  whether  Honeyman  acted  with  malice  aforethought  in  its 
legal  sense ;  and  this  depends  on  whether  he  acted  on  sufficient  provo- 
cation and  in  passion. 

He  had  no  provocation.  The  provocation  was  to  Ward.  There 
was  no  occasion  to  interfere  in  favor  of  Ward;  for  he  had  left  the 
house,  and  was  out  of  the  reach  of  danger,  if  he  had  ever  been  in 
any,  from  Askins.  Askins  was  preserving  (however  improperly)  the 
peace  of  his  own  house.  Honeyman  had  no  right  to  interfere;  and 
we  see  no  interest  that  he  had  in  Ward  more  than  in  Askins,  nor  any 
motive,  but  the  love  of  mischief.  If  even  there  had  been  provocation 
(and  there  was  none),  Honeyman  appears  to  have  been  cool,  and 
without  passion.  As  he  knocks  down  Askins,  he  says,  "If  you  know 
when  you  are  well,  Ben,  lie  still."  His  acts  are  voluntary,  wanton, 
deliberate,  and  cruel,  to  a  poor,  weak  man.  They  are  the  symptoms 
of  a  froward  mind,  of  a  wicked,  depraved,  and  malignant  spirit,  the 
plain  indications  of  a  heart  regardless  of  social  duty  and  fatally  bent 
upon  mischief.  They  therefore  manifest  malice  aforethought;  and 
this  killing  is  murder. 

The  jury  found  him  guilty  of  murder ;  and  sentence  of  death  was 
passed  on  him.  An  application  was  made  for  a  pardon,  and,  on  a 
reference  to  the  Attorney  General,  he  suggested,  as  an  error  in  the 
indictment,  that  the  epithets  feloniously,  willfully,  etc.,  applied  to  the 
assault,  were  not  also  applied  to  the  stroke.  On  this  a  writ  of  error 
was  brought.  What  the  issue  of  this  was,  or  whether  Honeyman  was 
pardoned,  I  know  not.^* 

13  The  judmiient  was  reversed  on  the  ground  suggested  by  the  Attorney 
General.     »ee  2  Dall.  228,  1  L.  Ed.  359. 


123  OFFENSES   AGAINST   THE   PERSON 

REGINA  V.  SERNE  et  al. 
(Central  Criminal  Court,  1SS7.     10  Cox,  C.  C.  311.) 

The  prisoners,  Leon  Serne  and  John  Henry  Goldfinch,  were  indicted 
for  the  murder  of  a  boy,  Sjaak  Serne,  the  son  of  the  prisoner  Leon 
Serne;  it  being  alleged  that  they  willfully  set  on  fire  a  house  and 
shop.  No.  274  Strand,  London,  by  which  act  the  death  of  the  boy 
had  been  caused. 

It  appeared  that  the  prisoner  Serne,  with  his  wife,  two  daughters, 
and  two  sons,  were  living  at  the  house  in  question,  and  that  Serne  at 
the  time  he  was  living  there,  in  midsummer,  1887,  was  in  a  state  of 
pecuniary  embarrassment,  and  had  put  into  the  premises  furniture  and 
other  goods  of  but  very  little  value,  which  at  the  time  of  the  fire  were 
not  of  greater  value  than  £30.  It  also  appeared  that  previously  to  the 
fire  the  prisoner  Serne  had  insured  the  life  of  the  boy,  Sjaak  Serne, 
who  was  imbecile,  and  on  the  1st  day  of  September,  1887,  had  in- 
sured his  stock  at  274  Strand  for  £500,  his  furniture  for  £100,  and 
his  rent  for  another  £100,  and  that  on  the  17th  of  the  same  month  the 
premises  were  burnt  down. 

Evidence  was  given  on  behalf  of  the  prosecution  that  fires  were 
'seen  breaking  out  in  several  parts  of  the  premises  at  the  same  time, 
soon  after  the  prisoners  had  been  seen  in  the  shop  together ;  two  fires 
being  in  the  lower  part  of  the  house  and  two  above,  on  the  floor  whence 
escape  could  be  made  onto  the  roof  of  the  adjoining  house,  and  in 
which  part  were  the  prisoners  and  the  wife  and  two  daughters  of 
Serne,  who  escaped;  that  on  the  premises  were  a  quantity  of  tissue 
transparencies  for  advertising  purposes,  which  were  of  a  most  in- 
flammable character,  and  that  on  the  site  of  one  of  the  fires  was  found 
a  great  quantity  of  these  transparencies  close  to  other  inflammable 
materials;  that  the  prisoner  Serne,  his  wife,  and  daughters  were 
rescued  from  the  roof  of  the  adjoining  house,  the  other  prisoner  being 
rescued  from  a  window  in  the  front  of  the  house,  but  that  the  boys 
were  burnt  to  death — the  body  of  the  one  being  found  on  the  floor 
near  the  window  from  which  the  prisoner  Serne,  his  wife,  and  daugh- 
ters had  escaped,  and  the  body  of  the  other  being  found  at  the  base- 
ment of  the  premises. 

StephiJn,  J.  Gentlemen,  it  is  now  my  duty  to  direct  your  atten- 
tion to  the  law  and  the  facts  into  which  you  have  to  inquire.  The 
two  prisoners  are  indicted  for  the  willful  murder  of  the  boy,  Sjaak 
Serne,  a  lad  of  about  14  years  of  age;  and  it  is  necessary  that  I 
should  explain  to  you,  to  a  certain  extent,  the  law  of  England  with 
regard  to  the  crime  of  willful  murder,  inasmuch  as  you  have  heard 
something  said  about  constructive  murder.  Now,  that  phrase,  gentle- 
men, has  no  legal  meaning  whatever.     There  was  willful  murder  ac- 


MURDER — MALICE    AFORETHOUGHT  123 

cording  to  the  plain  meaning-  of  the  term,  or  there  was  no  murder  at 
all  in  the  present  case.  The  definition  of  murder  is  unlawful  homicide 
with  malice  aforethought;  and  the  words  "malice  aforethought" 
are  technical.  You  must  not,  therefore,  construe  them,  or  suppose 
that  they  can  be  construed,  by  ordinary  rules  of  language.  The  words 
have  to  be  construed  according  to  a  long  series  of  decided  cases, 
which  have  given  them  meanings  different  from  those  which  might 
be  supposed.  One  of  those  meanings  is  the  killing  of  another  person 
by  an  act  done  with  an  intent  to  commit  a  felony.  Another  meaning 
is  the  act  done  with  the  knowledge  that  the  act  will  probably  cause  the 
death  of  some  person.  Now,  it  is  such  an  act  as  the  last  which  is 
alleged  to  have  been  done  in  this  case;  and  if  you  think  that  either 
or  both  of  these  men  in  the  dock  killed  this  boy,  either  by  an  act  done 
with  intent  to  commit  a  felony — that  is  to  say,  the  setting  of  the  house 
on  fire  in  order  to  cheat  the  insurance  company — or  by  conduct  which, 
to  their  knowledge,  was  likely  to  cause  death,  and  was  therefore 
eminently  dangerous  in  itself,  in  either  of  these  cases  the  prisoners 
are  guilty  of  willful  murder  in  the  plain  meaning  of  the  word.  I  will 
say  a  word  or  two  upon  one  part  of  this  definition,  because  it  is  capable 
of  being  applied  very  harshly  in  certain  cases,  and  also  because,  though 
I  take  the  law  as  I  find  it,  I  very  much  doubt  whether  the  definition 
which  I  have  given,  although  it  is  the  common  definition,  is  not  some- 
what too  wide.  Now,  when  it  is  said  that  murder  means  killing  a  man 
by  an  act  done  in  the  commission  of  a  felony,  the  mere  words  cover 
a  case  like  this ;  that  is  to  say,  a  case  where  a  man  gives  another  a 
push  with  an  intention  of  stealing  his  watch,  and  the  person  so  pushed, 
having  a  weak  heart  or  some  other  internal  disorder,  dies.  To  take 
another  very  old  illustration,  it  was  said  that  if  a  man  shot  a  fowl 
with  intent  to  steal  it,  and  accidentally  killed  a  man,  he  was  to  be  ac- 
counted guilty  of  murder,  because  the  act  was  done  in  the  commis- 
sion of  a  felony.  I  very  much  doubt,  however,  whether  that  is  really 
the  law,  or  whether  the  Court  for  the  Consideration  of  Crown  Cases 
Reserved  would  hold  it  to  be  so. 

The  present  case,  however,  is  not  such  as  I  have  cited,  nor  any- 
thing like  them.  In  my  opinion  the  definition  of  the  law  which  makes 
it  murder  to  kill  by  an  act  done  in  the  commission  of  a  felony  might 
and  ought  to  be  narrowed,  whilst  that  part  of  the  law  under  which 
the  crown  in  this  case  claim  to  have  proved  a  case  of  murder  is  main- 
tained. I  think  that,  instead  of  saying  that  any  act  done  with  intent 
to  commit  a  felony  and  which  causes  death  amounts  to  murder,  it 
would  be  reasonable  to  say  that  any  act  known  to  be  dangerous  to 
life,  and  likely  in  itself  to  cause  death,  done  for  the  purpose  of  com- 
mitting a  felony,  which  caused  death,  should  be  murder.  As  an  illus- 
tration of  this,  suppose  that  a  man,  intending  to  commit  a  rape  upon 
a  woman,  but  without  the  least  wish  to  kill  her,  squeezed  her  by  the 


12^  OFFENSES   AGAINST   THE   PERSON 

throat  to  overpower  her,  and  in  so  doing  killed  her,  that  would  be 
murder.  I  think  that  every  one  would  say,  in  a  case  like  that,  that 
when  a  person  began  doing  wicked  acts  for  his  own  base  purposes 
he  risked  his  own  life  as  well  as  that  of  others.  That  kind  of  crime 
does  not  differ  in  any  serious  degree  from  one  committed  by  using 
a  deadly  weapon,  such  as  a  bludgeon,  a  pistol,  or  a  knife.  If  a  man 
once  begins  attacking  the  human  body  in  such  a  way,  he  must  take 
the  consequences  if  he  goes  further  than  he  intended  when  he  began. 
That  I  take  to  be  the  true  meaning  of  the  law  on  the  subject.  In 
the  present  case,  gentlemen,  you  have  a  man  sleeping  in  a  house  with 
his  wife,  his  two  daughters,  his  two  sons,  and  a  servant,  and  you  are 
asked  to  believe  that  this  man,  with  all  these  people  under  his  pro- 
tection, deliberately  set  fire  to  the  house  in  three  or  four  different 
places,  and  thereby  burnt  two  of  them  to  death.  It  is  alleged  that  he 
arranged  matters  in  such  a  way  that  any  person  of  the  most  common 
intelligence  must  have  known  perfectly  well  that  he  was  placing  all 
those  people  in  deadly  risk.  It  appears  to  me  that,  if  that  were  really 
done,  it  matters  very  little  indeed  whether  the  prisoners  hoped  the 
people  would  escape,  or  whether  they  did  not.  If  a  person  chose,  for 
some  wicked  purpose  of  his  own,  to  sink  a  boat  at  sea,  and  thereby 
caused  the  deaths  of  the  occupants,  it  matters  nothing  whether  at  the 
time  of  committing  the  act  he  hoped  that  the  people  would  be  picked 
up  by  a  passing  vessel.  He  is  as  much  guilty  of  murder,  if  the  people 
are  drowned,  as  if  he  had  flung  every  person  into  the  water  with  his 
own  hand.  Therefore,  gentlemen,  if  Serne  and  Goldfinch  set  fire  to 
this  house  when  the  family  were  in  it,  and  if  the  boys  were  by  that 
act  stifled  or  burnt  to  death,  then  the  prisoners  are  as  much  guilty  of 
murder  as  if  they  had  stabbed  the  children.  I  will  also  add,  for  my 
own  part,  that  I  think  in  so  saying  the  law  of  England  lays  down  a 
rule  of  broad,  plain,  common  sense.  Treat  a  murderer  how  you  will, 
award  him  what  punishment  you  choose,  it  is  your  duty,  gentlemen, 
if  you  think  him  really  guilty  of  murder,  to  say  so.  That  is  the  law 
of  the  land,  and  I  have  no  doubt  in  my  mind  with  regard  to  it.  There 
was  a  case  tried  in  this  court,  which  you  v/ill  no  doubt  remember,  and 
which  will  illustrate  my  meaning.  It  was  the  Clerkenwell  Explosion 
Case  in  1868,  when  a  man  named  Barrett  was  charged  with  causing 
the  death  of  several  persons  by  an  explosion  which  was  intended  to 
release  one  or  two  men  from  custody ;  and  I  am  sure  that  no  one  can 
say  truly  that  Barrett  was  not  justly  hanged.  With  regard  to  the  facts 
in  the  present  case,  the  very  horror  of  the  crime,  if  crime  it  was,  the 
abomination  of  it,  is  a  reason  for  your  taking  the  most  extreme  care 
in  the  case,  and  for  not  imputing  to  the  prisoners  anything  which  is 
not  clearly  proved.  God  forbid  that  I  should,  by  what  I  say,  produce 
on  your  minds,  even  in  the  smallest  degree,  any  feeling  against  the 
prisoners.  You  must  see,  gentlemen,  that  the  evidence  leaves  no  rea- 
sonable doubt  upon  your  minds ;   but  you  will  fail  in  the  performance 


VOLUNTARY    MANSLAUGHTER  125 

of  your  duty  if,  being  satisfied  with  the  evidence,  you  do  not  convict 
one  or  both  the  prisoners  of  willful  murder,  and  it  is  willful  murder 
of  which  they  are  accused.  [The  learned  judge  then  proceeded  to  re- 
view the  evidence.  In  the  result  the  jury  found  a  verdict  of  not  guilty 
in  respect  of  each  of  the  prisoners.] 
Verdict — Not  guilty. 


V.  Voluntary  Manslaughter 


14 


STATE  V.  HILL. 

(Supreme  Court  of  North  Carolina,  1839.    20  N.  C.  629,  34  Am.  Dec.  396.) 

The  prisoner  was  indicted  for  murder,  at  Wake,  on  the  last  circuit, 
before  his  honor.  Judge  Saunders.     *     *     * 

The  jury  returned  a  verdict  of  guilty,  and,  sentence  of  death  be- 
ing pronounced  upon  the  prisoner,  he  appealed. 

Gaston,  Judge. ^^  *  *  *  fhe  j^^y  ^ere  instructed  "that  if  the 
prisoner  gave  the  first  blow,  and  was  then  cut  by  the  deceased,  al- 
though he  might  have  been  agitated  by  excitement  and  anger,  yet  if 
they  collected  from  what  he  said  and  did,  when  or  just  before  he 
gave  the  mortal  blow,  that  in  fact  he  was  possessed  of  deliberation  and 
reflection,  so  as  to  be  sensible  of  what  he  was  then  about  to  do,  and 
did  the  act  intentionally,  it  was  murder."  This  proposition,  as  we  un- 
derstand it,  and  as  we  must  believe  it  to  have  been  understood  by  the 
jury,  we  are  very  confident  cannot  be  sustained. 

The  proposition  supposes  that  the  first  assault  was  made  by  the 
prisoner  without  malice,  and  that  the  fatal  wound  was  given  while 
under  the  influence  of  indignation  and  resentment,  excited  by  the  ex- 
cessive violence  with  which  he  had  been  in  turn  assailed  by  the  de- 
ceased; but  it  refuses  to  the  prisoner  the  indulgence  which  the  law 
accords  to  human  infirmity  suddenly  provoked  into  passion,  if  such 
passion  left  to  him  so  much  of  deliberation  and  reflection  as  to  enable 
him  to  know  that  he  was  about  to  take,  and  to  intend  to  take,  the  life 
of  his  adversary.  No  doubt  can  be  entertained,  and  it  is  manifest  that 
none  was  entertained,  by  his  honor,  but  that  the  excessive  violence 
of  the  deceased,  immediately  following  upon  the  first  assault,  consti- 
tuted what  the  law  deems  a  provocation  sufficient  to  excite  furious 
passion  in  men  of  ordinary  tempers.  The  case  does  not  state  that 
the  first  blow  given  by  the  prisoner  was  such  as  to  endanger  life  or 

14  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §  75. 
16  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


120  OFFENSES   AGAINST   THE    PERSON 

to  threaten  great  bodily  harm,  nor  that  it  was  immediately  followed 
up  by  further  efforts  or  attempts  to  injure  the  deceased.  It  must  be 
taken  to  have  been  a  battery  of  no  very  grievous  kind,  and  it  justified 
the  deceased  in  resort'ing  to  so  much  force  on  his  part  as  was  reason- 
ably required  for  his  defense ;  and  in  estimating  the  quantum  of  force 
which  might  be  rightfully  thus  used  the  law  will  not  be  scrupulously 
exact.  But,  when  an  assault  is  returned  with  a  violence  manifestly 
disproportionate  to  that  of  the  assault,  the  character  of  the  combat 
is  essentially  changed,  and  the  assaulted  becomes  in  his  turn  the  as- 
sailant. 

Such,  according  to  the  case,  was  the  state  of  this  affray,  when  the 
mortal  wound  was  given.  To  avenge  a  blow,  the  deceased  attacked 
the  prisoner  with  a  knife,  made  three  cuts  at  him,  and  gave  him  a 
severe  wound  in  the  abdomen.  If  instantly  thereupon,  in  the  trans- 
port of  passion  thus  excited,  and  without  previous  malice,  the  prisoner 
killed  the  deceased,  it  would  have  been  a  clear  case  of  manslaughter. 
Not  because  the  law  supposes  that  this  passion  made  him  unconscious 
of  what  he  was  about  to  do,  and  stripped  the  act  of  killing  of  an  in- 
tent to  commit  it,  but  because  it  presumes  that  passion  disturbed  the 
sway  of  reason  and  made  him  regardless  of  her  admonitions.  It  does 
not  look  upon  him  as  temporarily  deprived  of  intellect,  and  therefore 
not  an  accountable  agent,  but  as  one  in  whom  the  exercise  of  judg- 
ment is  impeded  by  the  violence  of  excitement,  and  accountable  there- 
fore as  an  infirm  human  being.  We  nowhere  find  that  the  passion 
which  in  law  rebuts  the  imputation  of  malice  must  be  so  overpower- 
ing as  for  the  time  to  shut  out  knowledge  and  destroy  volition.  All 
the  writers  concur  in  representing  this  indulgence  of  the  law  to  be  a 
condescension  to  the  frailty  of  the  human  frame,  which,  during  the 
furor  brevis,  renders  a  man  deaf  to  the  voice  of  reason,  so  that,  al- 
though the  act  done  was  intentional  of  death,  it  was  not  the  result 
of  malignity  of  heart,  but  imputable  to  human  infirmity. 

The  proper  inquiry  to  have  been  submitted  to  the  jury  on  this  part 
of  the  case  was  whether  a  sufficient  time  had  elapsed  after  the  prisoner 
was  stabbed,  arid  before  he  gave  the  mortal  wound,  for  passion  to 
subside  and  reason  reassume  her  dominion ;  for  it  is  only  during  the 
temporary  dethronement  of  reason  by  passion  that  this  allowance  is 
made  for  man's  frailty.  And  in  prosecuting  this  inquiry  every  part 
of  the  conduct  of  the  prisoner,  as  well  words  as  acts  tending  to  show 
deliberation  and  coolness  on  the  one  side,  or  continued  anger  and  re- 
sentment on  the  other,  was  fit  to  be  considered,  in  order  to  conduct 
the  jury  to  a  proper  result.     *     *     * 

Judgment  to  be  reversed. 


VOLUNTARY   MANSLAUGHTER 


STATE  V.  GRUGIN. 


127 


(Supreme  Court  of  Missouri,  1898.    147  Mo.  39,  47  S.  W.  1058,  42  L.  R.  A. 

774,  71  Am.  St.  Rep.  553.) 

Sherwood,  J.^"  *  *  *  The  salient  topics  which  this  record  pre- 
sents, and  on  which  our  attention  will  be  centered,  are  these : 

First.  Did  the  outrage  perpetrated  by  Hadley  on  his  young  sister- 
in-law  Alma,  defendant's  daughter,  authorize  and  require  a  submis- 
sion to  the  jury  of  the  question,  whether  defendant's  shooting  Hadley 
was  done  in  "hot  blood,"  and  therefore  only  manslaughter? 

Second.  Did  the  insolent  and  defiant  reply  of  Hadley,  when  ques- 
tioned by  defendant  as  to  the  vile  deed  he  had  done  to  the  latter's 
daughter,  authorize  and  require  a  submission,  to  the  jury  of  the  ques- 
tion whether  the  words  used  by  Hadley  were  such  as  to  generate  a 
sufficient  or  reasonable  provocation,  so  as  to  produce  hot  blood,  and 
thus  lower  the  grade  of  the  homicide  in  either  degree  to  manslaughter  ? 

Third.  Whether  certain  instructions  given  at  the  instance  of  the 
state  should  have  been  refused? 

Fourth.  Whether  a  certain  instruction  asked  by  defendant  should 
have  been  given,  either  as  asked  or  in  a  modified  form  ? 

1.  In  discussing  the  first  question  propounded,  we  are  necessarily 
brought  into  contact  with  that  line  of  cases  which  treat  of  "hot  blood" 
and  how  it  may  be  engendered.  Among  other  familiar  instances  fur- 
nished by  the  books  are  those  where  a  husband  finds  a  man  in  the  act 
of  adultery  with  his  wife  and  immediately  kills  him  or  her.  That  is 
accounted  but  manslaughter,  and  it  is  the  lowest  degree  of  that  of- 
fense; and  therefore  in  such  a  case  the  court  directed  the  burning 
in  the  hand,  to  be  gently  inflicted,  because  there  could  not  be  a  greater 
provocation.    Sir  T.  Raym,  212. 

According  to  the  old  books,  such  discovery  of  the  wife's  adultery 
must  have  been  made  in  the  very  act,  and  the  killing  must  have  been 
done  "directly  on  the  spot"  in  order  to  reduce  the  homicide  to  man- 
slaughter. 4  Black.  Com.  191 ;  3  Greenl.  Ev.  (14th  Ed.)  §  122.  The 
husband  must  have  "ocular  inspection  of  the  act,  and  only  then." 
Pearson's  Case,  2  Lew.  216;  1  Hale,  P.  C.  487. 

But  since  the  law,  as  other  sciences,  makes  progress,  it  is  no  longer 
accounted  necessary  that  a  husband  should  have  "ocular  inspection," 
etc.  It  suffices  if  the  provocation  be  so  recent  and  so  strong  that  the 
husband  could  not  be  considered  at  the  time  master  of  his  own  under- 
standing. State  V.  Holme,  54  Mo.  153.  In  the  case  just  cited,  the 
case  of  Maher  v.  People,  10  Mich.  212,  81  Am.  Dec.  781,  was  ap- 
proved, the  facts  in  that  case  having  been  these :  "The  prisoner  of- 
fered evidence  tending  to  show  the  commission  of  adultery  by  H.  with 

16  Part  of  the  opinion  is  omitted. 


128  OFFENSES    AGAINST   THE    PERSON 

the  prisoner's  wife.  Within  half  an  hour  before  the  assault  the  proof 
showed  that  the  prisoner  saw  them  going  into  the  woods  together  un- 
der circumstances  calculated  strongly  to  impress  upon  his  mind  the 
belief  of  an  adulterous  purpose ;  that  he  followed  after  them  to  the 
woods;  that  they  were  seen  not  long  after  coming  from  the  woods, 
and  that  the  prisoner  followed  on  in  hot  pursuit,  and  was  informed 
on  the  way  that  they  had  committed  adultery  the  day  before ;  that  he 
followed  H.  into  a  saloon  in  a  state  of  excitement,  and  there  commit- 
ted the  assault.  The  court  held  that  the  evidence  was  proper,  as  -from 
it  it  would  have  been  competent  for  the  jury  to  find  that  the  act  was 
committed  in  consequence  of  the  passion  excited  by  the  provocation, 
and  in  a  state  of  mind  which  would  have  given  to  the  homicide,  had 
death  ensued,  the  charactei^  of  manslaughter  only.  The  evidence  show- 
ed that  the  prisoner,  in  following  H.  from  the  woods,  was  laboring 
under  great  excitement,  that  when  a  friend  told  him  on  the  way  what 
had  happened  the  day  before  his  passion  was  increased,  and  that 
when  he  arrived  at  the  saloon  the  perspiration  had  broken  out  all  over 
his  face."  And  in  that  case  it  was  ruled  that  the  question  as  to  what 
is  an  adequate  or  reasonable  provocation  is  one  of  fact  for  the  jury, 
and  so,  also,  is  the  question  whether  a  reasonable  time  had  elapsed  for 
the  passion  to  cool  and  reason  to  resume  its  control.     *     *     * 

The  trial  court,  while  it  admitted  the  evidence  which  preceded  the 
killing,  yet  by  its  instructions  denied  that  such  evidence  had  any  effect 
to  lower  the  grade  of  defendant's  crime  from  either  degree  of  murder 
to  manslaughter.  If  the  evidence  referred  to  was  to  be  denied  any 
effect,  then  it  should  not  have  been  admitted.  The  instructions  for  the 
state  under  review  were  also  erroneous,  in  that  they  dictated  to  the 
jury  as  a  matter  of  law  what  was  a  sufficient  or  reasonable  provoca- 
cation  and  what  a  sufficient  cooling  time.     *     *     * 

2.  The  second  interrogatory  is  next  for  consideration.  It  embodies 
and  comprehends  the  question  whether  words  constitute  a  sufficient 
or  reasonable  provocation  in  law.  Of  course,  the  books  abound  in 
utterance  of  the  platitude  that  words,  however  opprobrious,  constitute 
no  provocation  in  law.  Speaking  as  the  organ  of  this  court,  I  have 
often  uttered  this  platitude  myself;  but  the  statement  is  subject  to 
many  qualifications.  The  general  good  sense  of  mankind  has  in  some 
instances  so  far  qualified  the  rigor  of  what  is  termed  the  ancient  rule 
that  a  statute  has  been  passed  in  Texas  which  reduces  a  homicide  to 
manslaughter  where  insulting  words  are  used  to  or  concerning  a  fe- 
male relative.  The  killing  is  reduced  to  manslaughter  where  it  oc- 
curs as  soon  as  the  parties  meet  after  the  knowledge  of  the  insult.  9 
Am.  &  Eng.  Ency.  of  Law,  581. 

In  Alabama  a  statute  provides  that  opprobrious  words  shall  in  some 
circumstances  justify  an  assault  and  battery.  Riddle  v.  State,  49  Ala. 
389.  And  in  that  state,  without  any  statutory  provision  on  the  sub- 
ject, it  has  been  determined  that  "insult  by  mere  words,"  when  the 


VOLUNTARY    MANSLAUGHTER  129 

defendant  acts  on  them  and  he  has  not  provoked  them,  may  be  weigh- 
ed by  the  jury  with  other  evidence  in  determining  whether  the  kilHng 
was  murder  in  the  first  or  second  degree.  Watson  v.  State,  82  Ala. 
10,  2  South.  455.     *     *     * 

I  will  now  refer  to  some  adjudications  where  insulting  words  have 
been  held  a  sufficient  basis  for  a  charge  or  an  instruction  on  the  of- 
fense of  manslaughter.  Where  the  prisoner  was  indicted  for  the  will- 
ful murder  of  his  wife,  Blackburn,  J.,  in  summing  up,  said:  "As  a 
general  rule  of  law,  no  provocation  of  words  will  reduce  the  crime  of 
murder  to  that  of  manslaughter,  but  under  special  circumstances  there 
may  be  such  a  provocation  of  words  as  will  have  that  effect;  for  in- 
stance, if  a  husband  suddenly  hear  from  his  wife  that  she  had  com- 
mitted adultery,  and  he,  having  no  idea  of  such  a  thing  before,  were 
thereupon  to  kill  his  wife,  it  might  be  manslaughter.  Now,  in  this 
case,  words  spoken  by  the  deceased  just  previous  to  the  blows  inflicted 
by  the  prisoner  were  these :  'xA-ye ;  but  I'll  take  no  more  for  thee,  for 
I  will  have  no  more  children  of  thee.  I  have  done  it  once,  and  I'll 
do  it  again.'  Now,  what  you  will  have  to  consider  is,  would  these 
words,  which  were  spoken  just  previous  to  the  blows,  amount  to  such 
a  provocation  as  would  in  an  ordinary  man,  not  in  a  man  of  violent  or 
passionate  disposition,  provoke  him  in  such  a  way  as  to  justify  him  in 
striking  her  as  the  prisoner  did?"  Reg.  v.  Rothwell,  12  Cox,  C.  C. 
145.  In  that  case  (tried  in  1871)  the  husband  seized  a  pair  of  tongs, 
close  at  hand,  and  struck  his  wife  three  violent  blows  on  the  head, 
from  which  she  died  within  a  week,  and  the  verdict  was  for  man- 
slaughter.    *     *     * 

[The  Court  here  reviewed  Reg.  v.  Smith,  4  Fost.  &  F.  1066;  Seals 
V.  State,  3  Baxt.  (Tenn.)  466,  and  Wilson  v.  People,  4  Parker,  Cr. 
R.  (N.  Y.)  619,  and  continued :] 

So  it  will  be  seen  that  there  are  circumstances  where  words  do 
amount  to  a  provocation  in  law ;  i.  e.,  a  reasonable  provocation  to  be 
submitted  to  the  determination  of  the  jury,  and,  if  found  by  them  to 
exist,  then  the  crime  is  lowered  to  the  grade  of  manslaughter.  If  there 
ever  was  a  case  to  which  this  principle  should  be  applied,  it  would 
seem  it  should  be  applied  to  the  case  at  bar.  A  father  is  informed  that 
his  young  daughter,  just  budding  into  womanhood,  has  been  ravished  by 
his  son-in-law,  while  under  the  supposed  protection  of  his  roof.  Arriv- 
ing where  the  son-in-law  is,  and  making  inquiry  of  him  why  he  had  done 
the  foul  deed,  that  father  receives  the  answer,  "I'll  do  as  I  damn  please 
about  it."  This  insolent  and  defiant  reply  amounted  to  an  affirmation 
of  Hadley's  guilt !  So  long  as  human  nature  remains  as  God  made  it, 
such  audacious  and  atrocious  avowals  will  be  met  as  met  by  defendant. 
It  should  be  held,  therefore,  that  the  words  in  question  should  have 
been  left  to  the  jury  to  say  whether,  in  the  circumstance  detailed  in 
evidence,  they  constituted  a  reasonable  provocation,  and,  if  so  found, 
MiKET.L  Cas.Cr.L. — 9 


130  OFFENSES   AGAINST   THE    PERSON 

that  then  defendant  was  guilty  of  no  higher  ofifense  than  manslaughter 
in  the  fourth  degree.     *     *     * 

The  judgment  should  be  reversed,  and  the  cause  remanded.  Bur- 
gess, J.,  concurs  in  toto.  Gantt,  P.  J.,  does  not  concur  as  to  that 
portion  of  paragraph  2  in  reference  to  words  being  regarded  as  a  rea- 
sonable provocation  by  either  court  or  jury. 


VI.  Involuntary  Manslaughter  ^' 


REGINA  V.  MARRIOTT. 

(Central  Criminal  Court,  1S3S.    8  Car.  &  P.  425.) 

Murder.^*  The  first  count  of  the  indictment  stated  that  it  was  the 
duty  of  the  defendant  to  provide  one  Mary  Warner,  under  the  care 
and  control  of  the  defendant,  with  sufficient  meat,  drink,  clothing, 
firing,  and  medicine,  and  that  by  the  neglect  of  the  defendant  so  to 
provide  said  Alary  Warner  with  sufficient  meat,  etc.,  said  Mary  War- 
ner became  mortally  diseased,  and  of  said  mortal  disease  died.  There 
was  a  second  count  charging  that  the  defendant  willfully,  etc.,  as- 
saulted Mary  Warner,  and  confined  her  in  a  certain  dark,  cold,  un- 
healthy, and  unwholesome  room,  without  proper  food,  etc.,  by  means 
of  which  she  died. 

From  the  evidence  of  the  prosecution  it  appeared  that  the  deceased, 
Mrs.  Warner,  who  was  about  74  years  of  age,  had  lived  for  some 
time  with  a  sister  in  Cannon  street,  in  the  city,  in  a  house  which  they 
let  out  in  lodgings,  and  of  which  the  sister  had  a  lease  under  the  Pew- 
terers'  Company.  Upon  the  death  of  the  sister  whose  name  was 
Reepe,  in  March,  1837,  the  prisoner  attended  at  the  funeral,  and, 
among  others,  a  grandson  of  Mrs.  Reepe,  named  Charles  Reepe,  was 
present.  He  was  called  as  a  witness,  and  gave  his  evidence  as  fol- 
lows :  "Mrs.  Warner's  sister  was  my  grandfather's  second  wife.  I 
remember  the  death  of  Mrs.  Reepe.  I  went  to  her  funeral,  and  saw 
the  prisoner  there.  After  the  funeral  he  called  me  on  one  side,  and 
asked  if  I  should  have  any  objection  to  pay  for  my  cloak,  and  my 
sister's,  and  my  brother's  also,  as  he  did  not  wish  to  put  Mary  Warner 
to  any  expense,  and  he  should  pay  for  his.  He  told  me  he  was  left 
executor.  He  showed  me  about  a  quarter  of  a  sheet  of  writing  paper 
as  a  will,  and  told  me  he  had  found  it  by  mere  chance  lying  on  the 

17  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §  76. 

18  The  statement  of  facts  is  abi-idged. 


INVOLUNTARY   MANSLAUGHTER 


131 


ground.  I  observed  Mrs.  Warner  was  much  grieved,  and  took  a  chair 
and  sat  down  by  the  side  of  her,  and  told  her  she  should  come  and  live 
at  home  with  me,  and  I  would  make  her  happy  and  comfortable  for 
the  remainder  of  her  life.  Her  reply  was,  that  it  was  a  kind  offer, 
certainly.  The  prisoner  said:  'No,  no,  sir;  she  shall  go  home  and 
live  along  with  me,  as  you  are  no  relation  whatever.'  I  asked  him 
what  relation  he  was.  He  said  he  was  a  townsman,  and  that  he  had 
buried  Mrs.  Recpe's  sister,  and  it  was  Mrs.  Reepe's  wish  that  he 
should  bury  her  too;  in  fact,  that  he  was  executor.  He  said:  'Mrs. 
Warner  is  going  home  to  live  along  with  me  until  affairs  are  settled, 
and  I  will  make  her  happy  and  comfortable.'  " 

To  prove  the  interference  of  the  prisoner  in  Mrs.  Warner's  affairs, 
as  well  as  to  show  that  he  had  undertaken  to  provide  her  with  food 
and  other  necessaries,  a  Mrs.  Cruikshank  was  called  as  a  witness. 
She  said :  "I  am  the  wife  of  Robert  Cruikshank,  and  live  at  No.  34 
Cannon  street,  city.  Some  days  previous  to  the  10th  of  October  I 
went  with  my  husband  to  No.  1  Dolphin  Court.  I  there  saw  the  pris- 
oner and  his  wife.  Mr.  Marriott  asked  me  to  write  an  agreement 
about  the  house  No.  34  Cannon  street,  of  which  Mr.  Cruikskank  was 
to  take  the  upper  part.  I  heard  the  prisoner  mention  the  name  of 
Mary  Warner  to  his  wife.  He  talked  in  an  indistinct  tone.  I  could 
hear  nothing  more  than  the  name  of  Mary  Warner.  ]\Irs.  :Marriott 
dissented  to  what  he  said,  whatever  it  was,  and  he  again  repeated  it 
to  her,  and  she  again  dissented.  I  asked  the  prisoner  what  interest 
Mrs.  Warner  had  in  the  house,  and  he  said,  'None  whatever.'  He 
asked  me  'if  I  remembered  a  conversation  he  had  with  me  respect- 
ing the  decease  of  Mrs.  Reepe.'  I  told  him,  'Perfectly  well.'  He  said, 
'Did  I  not  remember  he  had  told  me  at  Mrs.  Reepe's  decease  that  Tvlrs. 
Warner  was  her  sister.'  I  inquired  in  what  way  Airs.  Warner  could 
be  a  party  to  the  agreement.  His  reply  was,  'None  whatever.'  He 
said  something  about  her  not  being  capable  of  undergoing  the  fatigue ; 
that  at  her  advanced  age  she  was  quite  incapable ;  that  he  had  been 
accustomed  to  let  lodgings.  There  was  an  agreement  ultimately  sign- 
ed. I  produce  it.  It  is  not  stamped.  After  it  had  been  signed,  I 
inquired  whether  Mrs.  Warner  was  a  relative,  as  he  seemed  to  take 
such  an  interest  in  her  affairs.  He  -said,  'None  at  all.'  He  said,  re- 
specting the  house  in  Cannon  street,  Mrs.  Warner  having  been  ac- 
customed to  let  lodgings,  he  had  taken  the  lease  of  the  house  of  the 
Pewterers'  Company,  on  condition  of  paying  up  an  arrear  of  rent; 
that  they  had  given  him  four  years  to  pay  it  by  three  installments, 
i20  af  which  he  had  paid,  in  consideration  of  which  he  had  under- 
taken to  keep  Mrs.  Warner  comfortable  as  long  as  she  lived.  I  wish- 
ed to  purchase  some  of  the  furniture,  and  he  said  I  might  make  my 
own  selection.  He  did  not  say  to  whom  it  belonged.  I  understood 
it  was  his  own  property.  He  did  not  speak  of  it  as  anybody's  proper- 
ty but  his  own.     He  appointed  a  Mr.  Kelly  to  value  the  furniture  in 


132  OFFENSES   AGAINST   THE   PERSON 

the  house  in  Cannon  street  to  Mr.  Cruikshank,  and  a  Mr.  Phillips 
was  appointed  to  value  it  for  us.  The  amount  of  the  valuation  was 
iZ7 ,  within  a  few  shillings.  That  has  not  been  paid.  We  were  to 
pay  it  to  Mr.  Marriott."  On  her  cross-examination  she  said:  "When 
the  name  of  Mary  Warner  was  mentioned,  and  Mrs.  Marriott  shook 
her  head,  the  prisoner  said,  'Yes,  yes,  better;'  and  the  name  of  Mary 
Warner  was  put  into  the  agreement,  because  Mrs.  Marriott  asked  me 
to  do  so." 

The  clerk  to  the  Pewterers'  Company  was  called  and  he  said: 
"There  was  never  any  premises  in  Cannon  street  let  to  the  prisoner. 
He  never  at  any  time  took  a  lease  in  any  shape  from  the  Pewterers' 
Company.  He  has  paid  two  installments  of  ill  15s.  each  for  arrears 
of  rent  due  from  Mrs.  Reepe.  He  paid  it  as  her  executor.  He  so 
stated."  On  his  cross-examination  he  was  asked  whether  there  was 
not  a  petition  sent  in  on  the  part  of  Mary  Warner,  as  the  sister  of 
Mrs.  Reepe,  to  let  her  off  the  arrears  in  consideration  of  her  long  ten- 
ancy. His  reply  was :  "There  was  a  memorial  sent  in  in  the  name  of 
the  prisoner.  He  stated  his  object  to  be  to  serve  Mary  Warner.  The 
prayer  of  the  petition  was  not  acceded  to.  He  made  himself  answer- 
able for  the  amount,  and  signed  a  written  memorandum."  The  will 
of  Mrs.  Reepe  was  read.  It  was  dated  the  26th  of  March,  1836,  be- 
queathing to  Mrs.  Warner  all  her  effects,  and  the  lease  of  the  house 
in  Cannon  street.  A  clerk  in  the  Prerogative  Office  was  called,  and 
stated  that  the  personal  property  was  sworn  under  £100,  and  that  let- 
ters of  administration  were  granted  the  20th  of  July,  1837;  that  Mrs. 
Warner  must  have  appeared  personally;  and  that  the  prisoner  was 
one  of  her  sureties  for  the  proper  administration  of  the  effects. 

PaTTeson,  J.,  in  summing  up  (after  stating  the  first  count  of  the 
indictment  and  observing  upon  certain  parts  of  the  evidence),  said: 
\i  the  prisoner  was  guilty  of  willful  neglect,  so  gross  and  wihful  that 
you  are  satisfied  he  must  have  contemplated  the  death  of  Mrs.  Warner, 
then  he  will  be  guilty  of  murder.  If,  however,  you  think  only  that  he 
was  so  careless  that  her  death  was  occasioned  by  his  negligence,  though 
he  did  not  contemplate  it,  he  will  be  guilty  of  manslaughter.  The 
cases  which  have  happened  of  this  description  have  been  generally 
cases  of  children  and  servants,  where  the  duty  has  been  apparent. 
This  is  not  such  a  case ;  but  it  will  be  for  you  to  say  whether,  from 
the  way  in  which  the  prisoner  treated  her,  he  had  not  by  way  of  con- 
tract, in  some  way  or  other,  taken  upon  him  the  performance  of  that 
duty  which  she,  from  age  and  infirmity,  was  incapable  of  doing.  [His 
Lordship  then  read  the  statements  of  Mr.  Reepe,  and  Mrs.  Cruik- 
shank, and  continued :]  This  is  the  evidence  on  which  you  are  called 
on  to  infer  that  the  prisoner  undertook  to  provide  the  deceased  with 
necessaries;  and  though,  if  he  broke  that  contract,  he  might  not  be 
liable  to  be  indicted  during  her  life,  yet,  if  by  his  negligence  her  death 
was  occasioned,  then  he  becomes  criminally  responsible. 

Verdict — Guilty  of  manslaughter  only. 


OFFENSES    AGAINST   THE    PERSON  133 


OFFENSES  AGAINST  THE  PERSON   (Continued) 

I.  Rape^ 


DON  MORAN  v.  PEOPLE. 

(Supreme  Court  of  Michigan,  1872.    25  Mich,  356,  12  Am.  Rep.  283.) 

Christiancy,  C.  j,2  *  *  *  The  court  charged  the  jury  as  fol- 
lows: 

"If  you  find  that  the  defendant  represented  to  the  complaining  wit- 
ness that,  as  a  part  of  his  medical  treatment,  it  was  necessary  for  her 
to  have  carnal  connection  with  him,  that  such  representations  were 
false  and  fraudulent,  that  she  believed  it,  and,  relying  upon  it,  con- 
sented to  the  solicitations  of  the  defendant,  and  had  connection  with 
him,  and  that  such  representations  were  made  for  the  purpose  of  in- 
ducing her  to  give  such  consent,  and  that  without  it  she  would  not 
have  yielded,  the  defendant  is  guilty  of  the  crime  charged  against 
him."     *     *     * 

It  will  be  noticed  that  this  charge  leaves  out  and  wholly  ignores  all 
idea  of  force  as  a  necessary  element  of  the  crime  charged ;  and  the 
jury  were,  in  effect,  told  that  the  defendant  might  be  found  guilty  of 
the  rape,  though  he  neither  used,  nor  threatened  to  use,  any  force 
whatever  in  case  of  her  refusal,  and  though  she  might  have  assented 
without  any  constraint  produced  by  the  fear  or  apprehension  of  force, 
or  any  dangerous  or  serious  consequences  to  herself  if  she  refused  or 
resisted. 

This  feature  of  the  charge  is  assigned  as  error,  and  presents  the 
only  question  raised  in  the  case  by  the  plaintiff  in  error. 

The  definition  of  rape,  as  generally  given  in  the  English  books,  is 
that  "rape  is  the  unlawful  carnal  knowledge,  by  a  man  of  a  woman, 
forcibly  (or  by  force),  and  against  her  will."  3  Coke's  Inst.  (Thomas' 
Ed.)  549;  1  Hale,  P.  C.  628;  Hawkins,  P.  C.  (Cur.  Ed.)  122;  4  Bl. 
Com.  210;  1  Russ.  on  Cr.  (Greenl.  Ed.)  675.  This  definition  depended, 
perhaps,  partly  upon  the  common  law,  but  mainly  upon  two  early  and 
rather  loosely  worded  English  statutes,  one  of  which  (St.  Westm.  II, 
c.  34)  expressly  made  force  an  element  in  the  crime,  if  the  party  were 
attainted  at  the  king's  suit  (though  not  when  the  proceeding  was  by 
appeal),  and  the  other  (St.  Westm.  I,  c.  13)  which  did  not  require 

1  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §§  79, 
80. 

2  Fart  of  this  case  is  omitted. 


134  OFFENSES   AGAINST   THE   PERSON 

force  as  an  element,  except  as  it  might  be  inferred  from  the  word, 
"ravished."  See  2  Bish.  Cr.  L-  §§  1067  to  1069,  where  the  substance 
of  these  statutes  is  given.  And,  as  remarked  by  Mr.  Bishop  (2  Bish. 
Cr.  L.  §  1073),  the  more  correct  definition  to  be  gathered  from  these 
statutes  would  have  been :  "Rape  is  the  unlawful  carnal  knowledge  by 
a  man  of  a  woman,  by  force,  when  she  does  not  consent."  The  differ- 
ence between  the  two  definitions,  however,  would  seem  to  be  important 
onlv  in  cases  where  the  female  with  whom  the  connection  is  had  may 
be  said  to  have  no  will,  as  in  the  case  of  an  idiot,  or  insane  person,  or 
one  in  a  state  of  unconsciousness,  in  which  cases,  if  anywhere,  the 
force  necessary  to  accomplish  the  act  itself  without  resistance  could 
possibly  be  held  to  constitute  the  force  contemplated  by  the  definition 
of  the  oft'ense.  See  Rex  v.  Ryan,  2  Cox,  C.  C.  115;  Reg.  v.  Fletcher, 
Bell,  C.  C.  63 ;  Reg.  v.  Camplin,  1  Den.  C.  C.  89.  But  this  particular 
class  of  cases  has  no  special  bearing  upon  the  case  now  before  us  (and 
we  do  not  discuss  it) ;  nor  are  we  embarrassed  by  any  uncertainty  in 
the  definition  of  the  offense. 

Our  statute  has  adopted  substantially  the  definition  first  above  given 
from  the  English  authorities.  Section  5730,  Comp.  Laws  1857,  de- 
clares :  "If  any  person  shall  ravish  and  carnally  know  any  female  of 
the  age  of  ten  years  or  more,  by  force  and  against  her  will,  *  *  * 
he  shall  be  punished,"  etc. 

In  the  interpretation  of  this  statute,  it  is  clear  that  the  term  "by 
force"  must  not  be  wholly  rejected  or  ignored,  but  that  some  effect 
must  be  given  to  it,  and  the  language  of  the  provision  certainly  requires 
something  more  to  be  shown  than  if  these  words  had  been  omitted; 
and  it  is  equally  clear  that  if  that  particular  kind  and  amount  of  force 
only  is  required  which  is  always  essential  to  the  act  of  sexual  connec- 
tion itself,  when  performed  with  the  assent  of  the  woman,  then  no 
effect  whatever  is  given  to  the  term  "by  force,"  but  the  interpretation 
and  the  effect  of  the  statute  will  be  precisely  the  same  as  if  these  words 
were  not  contained  in  it.  This  interpretation,  therefore,  is  not  per- 
missible. Some  eft'ect  must  be  given  to  the  words ;  and  such  has  been 
the  almost,  if  not  entirely,  uniform  course  of  decision,  both  in  England 
and  in  this  country,  where  the  definition  of  the  offense  is  substantially 
the  same  as  that  given  by  our  statute,  when  the  charge  has  been  for 
the  actual  commission  of  the  rape  upon  a  female  of  the  age  of  proper 
discretion,  of  sound  mind,  and  in  full  possession  of  her  faculties,  how- 
ever fraudulent  the  means,  or  false  the  pretenses,  by  which  her  consent 
was  procured.  I  have  not  been  able  to  find  a  single  well-authenticated 
case,  where  the  question  was  directly  raised,  in  which  it  has  been  di- 
rectly decided  the  other  way.  *  *  *  The  true  rule  as  to  force  in 
cases  of  rape  generally  was  recognized  by  this  court  in  People  v.  Val- 
entine Cornwell  (not  Crosswell  v.  People,  as  printed  in  the  Report)  13 
Mich.  433,  87  Am.  Dec.  774,  where  it  was  said  that  "the  essence  of 
the  crime  is  not  the  fact  of  intercourse,  but  the  injury  and  outrage  to 


KAPE  135 

the  feelings  of  the  woman  by  means  of  the  carnal  knowledge  effected 
by  force."  And  there  being  no  force  used  or  threatened  in  that  case, 
but  strong  grounds  for  believing  that  the  woman  was  the  soliciting 
party,  the  connection  was  properly  held  not  to  constitute  rape,  though 
the  woman  was  not  of  sound  mind,  and  had  no  intelligent  understand- 
ing at  the  time  the  act  was  committed,  but  was  in  good  physical  health. 
In  cases  where  the  woman  is  entirely  insensible  from  icjiocy,  or  from 
the  effect  of  drugs  administered  (though  the  point  is  not  here  involved), 
it  may  be  entirely  right  to  hold  a  very  slight  degree  of  force  sufficient ; 
and  that  amount  of  force  which,  in  such  cases,  would  always  be  nec- 
essary, beyond  what  would  be  required  with  a  consenting  party,  might, 
perhaps,  properly  be  held,  as  it  sometimes  has  been  held,  sufficient  to 
make  the  transaction  a  rape,  as  suggested  by  my  Brother  Cooley  in 
People  V.  Cornwell,  ubi  supra. 

And  when  drugs  are  administered,  or  procured  to  be  administered, 
by  the  criminal,  for  the  purpose  of  taking  away  or  lessening  the  power 
of  resistance,  and  having  that  effect,  there  may  be  no  ground  for  dis- 
tinction between  the  force  thus  exerted  by  him  through  the  agency  of 
the  drugs  and  that  directly  exerted  by  his  hand  and  for  the  same  pur- 
pose. 

The  only  question  really  involved  in  People  v.  Cornwell,  above  cited, 
was  whether,  under  the  circumstances  of  that  case,  the  defendant  could 
be  held  guilty  without  proof  of  force  in  any  form,  actual,  or  threat- 
ened, and  it  was,  I  think,  properly  held  by  us  that  he  could  not. 

If  the  statute,  or  the  definition  of  rape,  did  not  contain  the  words 
"by  force,"  or  "forcibly,"  doubtless  a  consent  procured  by  such  fraud 
as  that  referred  to  might  be  treated  as  no  consent;  but  the  idea  of 
force  cannot  be  thus  left  out  an.d  ignored,  nor  can  such  fraud  be  al- 
lowed to  supply  its  place,  though  it  would  doubtless  supply  and  satisfy 
all  the  other  terms  of  the  definition,  and,  so  far  as  the  intimation  in 
question  is  to  be  understood  as  going  further  and  dispensing  with  all 
idea  of  force,  it  must  be  understood  as  an  intimation  of  the  court  of 
what,  in  their  opinion,  the  law  ought  to  be,  rather  than  what  it  is. 
And,  upon  abstract  principles  of  right  and  wrong,  a  sexual  connection 
obtained  by  falsely  and  fraudulently  personating  the  husband  of  a 
woman,  or  by  a  physician  fraudulently  inducing  a  female  patient  to 
believe  such  connection  essential  to  a  course  of  medical  treatment,  must 
be  considered  nearly,  if  not  quite,  as  criminal  and  prejudicial  to  society 
as  when  obtained  by  force  or  any  apprehension  of  violence;  and  it 
might,  and  in  my  opinion  would,  be  judicious  for  the  Legislature  to 
make  some  provision  for  punishment  in  cases  of  this  kind.  But  it  is 
not  for  tlie  judiciary  to  legislate,  by  straining  the  existing  criminal  law 
to  bring  such  cases  within  it. 

For  the  reasons  given,  I  think  the  judgment  of  the  recorder's  court 
should  be  reversed,  and  a  new  trial  awarded. 

And,  with  reference  to  a  new  trial,  it  is  proper  for  the  guidance  of 
the  recorder's  court  to  consider  the  nature  of  the  evidence  set  forth 


136  OFFENSES   AGAINST   THE   PERSON 

in  the  record,  and  which  will  probably  appear  upon  the  new  trial,  and 
to  determine  what  charge  the  state  of  facts  would  warrant,  or  whether 
there  was  anything  in  the  evidence  which  would  authorize  the  jury 
to  find  that  the  carnal  connection  was  obtained  "by  force  and  against 
the  will"  of  the  party  injured. 

We  think  it  is  well  and  properly  settled  that  the  term  "by  force" 
dees  not  necessarily  imply  the  positive  exertion  of  actual  physical  force 
in  the  act  of  compelHng  submission  of  the  female  to  the  sexual  con- 
nection, but  that  force  or  violence  threatened  as  the  result  of  noncom- 
pliance, and  for  the  purpose  of  preventing  resistance  or  extorting  con- 
sent, if  it  be  such  as  to  create  a  real  apprehension  of  dangerous  con- 
sequences, or  great  bodily  harm,  or  such  as  in  any  manner  to  over- 
power the  mind  of  the  victim,  so  that  she  dare  not  resist,  is,  and  upon 
all  sound  principles  must  be,  regarded,  for  this  purpose,  as  in  all  re- 
spects equivalent  to  force  actually  exerted  for  the  same  purpose.  See 
Reg.  V.  Hallett,  9  C.  &  P.  748 ;  Reg.  v.  Day,  Id.  722 ;  Wright  v.  State, 
4  Humph.  (Tenn.)  194 ;  Pleasant  v.  State,  8  Eng.  360.  And  see  Strang 
V.  People,  24  Mich.  1.  Nor,  as  appears  by  the  case  last  cited,  need  the 
threats  be  of  force  to  be  used  in  accomplishing  the  act,  as  in  that  case 
the  principal  threat  was  that,  if  she  refused,  he  would  take  her  away 
where  she  could  never  get  back.  In  fact,  we  think  the  terms  of  the 
statute  in  reference  to  force  are  satisfied  by  any  sexual  intercourse  to 
which  the  woman  may  have  been  induced  to  yield  only  through  the  con- 
straint produced  by  the  fear  of  great  bodily  harm,  or  danger  to  life 
or  limb,  which  the  prisoner  has,  for  the  purpose  of  overcoming  her 
will,  caused  her  to  apprehend  as  the  consequence  of  her  refusal,  and 
without  which  she  would  not  have  yielded. 

It  remains  only  to  apply  these  principles  to  the  present  case. 

Considering  the  way  and  the  purpose  for  which  the  girl  had  been 
placed  by  her  father  under  the  care  and  treatment  of  the  defendant  as 
her  physician,  the  evidence  had  a  tendency  to  show,  and  the  jury  might 
properly  have  found,  that  the  girl  was  induced  by  the  defendant  to  sub- 
mit to  the  sexual  intercourse  with  him  from  the  fear  and  under  the 
apprehension,  falsely  and  fraudulently  inspired  by  the  defendant  for 
the  purpose  of  overcoming  her  opposition,  that,  if  she  did  not  yield 
to  such  intercourse,  he  intended  to,  and  would,  use  instruments  "for 
the  purpose  of  enlarging  the  parts,"  and  that  such  operation  with  in- 
struments would  be  likely  to  kill  her.  And  if  the  jury  should  so  find — 
with  or  without  the  other  facts  submitted  to  them  by  the  charge  given 
— and  that  she  would  not  otherwise  have  yielded,  it  would  be  their 
duty  to  find  the  defendant  guilty  of  the  crime  charged. 

The  judgment  must  be  reversed,  and  a  new  trial  awarded. 

Campbell,  J.,  concurred. 

Coole;y,  J.  As  my  Brethren  are  agreed  in  this  case,  1  concur  in 
the  result,  while  not  fully  assenting  to  all  that  is  expressed  in  the 
opinion. 

Graves,  J.,  did  not  sit  in  this  case. 


ASSAULT   AND   BATTERY  137 

THE  QUEEN  v.  FLATTERY. 

(Court  for  Crown  Cases  Reserved,  1877.    2  Q.  B.  Div.  410.) 

KitLivY,  C.  B.^  I  think  this  conviction  ought  to  be  affirmed.  Mr.' 
Lockwood  has  ably  arq-ned  that  there  was  consent  on  the  part  of  the 
prosecutrix,  and  therefore  no  rape.  But,  on  the -case  as  stated,  it  is 
plain  that  the  girl  only  submitted  to  the  plaintiff's  touching  her  person 
in  consequence  of  the  fraud  and  false  pretenses  of  the  prisoner,  and 
that  the  only  thing  she  consented  to  was  the  performance  of  a  surgical 
operation.  Up  to  the  time  when  she  and  the  prisoner  went  into  the 
room  alone,  it  is  clearly  found  on  the  case  that  the  only  thing  con- 
templated either  by  the  girl  or  her  mother  was  the  operation  which 
had  been  advised.  Sexual  connection  was  never  thought  of  by  either 
of  them.  And  after  she  was  in  the  room  alone  with  the  prisoner 
what  the  case  expressly  states  is  that  the  girl  made  but  feeble  re- 
sistance, believing  that  she  was  being  treated  medically,  and  that  what 
was  taking  place  w^as  a  surgical  operation.  In  other  words,  she  sub- 
mitted to  a  surgical  operation,  and  nothing  else.  It  is  said,  however, 
that  having  regard  to  the  age  of  the  prosecutrix,  she  must  have  known 
the  nature  of  sexual  connection.  I  know  no  ground  in  law  for  such 
a  proposition ;  and,  even  if  she  had  such  knowledge,  she  might  sup- 
pose that  penetration  was  being  effected  with  the  hand  or  with  an 
instrument.  The  case  is,  therefore,  not  within  the  authority  of  those 
cases  which  have  decided — decisions  which  I  regret — that,  where  a 
man  by  fraud  induces  a  woman  to  submit  to  sexual  connection,  it  is 
not  rape.     *     *     * 

Conviction  affirmed. 


II.  Assault  and  Battery  * 


STATE  v.  DANIEL. 

(Supreme  Court  of  North  Carolina,  1904.    136  N.  C.  571,  48  S.  E.  544, 

103  Am.  St.  Rep.  070.) 

WaIvKe;r,  j.b  *  *  *  'pi-,g  f^rst  instruction  was  that  if  the  de- 
fendant cursed  the  prosecutor,  Alston,  and  ordered  him  to  come  to 
him,  and  Alston  obeyed  through  fear,  the  defendant  was  guilty  of 

8  The  statement  of  facts  and  the  opinions  of  Mellor,  Denman,  and  Field,  JJ., 
and  Huddleston,  B.,  are  omitted. 

*  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §§. 
81-83. 

6  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


138  OFFENSES   AGAINST   THE   PERSON 

an  assault.  Before  the  prosecutor  reached  the  place  near  the  hog 
pen  where  the  defendant  was  standing,  the  latter  had  made  no  threat, 
nor  had  he  offered  or  attempted  any  violence  to  the  person  of  the 
prosecutor,  nor  was  there  any  display  or  exhibition  of  force  of  any 
kind,  so  far  as  the  evidence  here  shows.  In  this  state  of  the  case  we 
are  unable  to  sustain  this  instruction  as  a  correct  statement  of  the  law 
of  assault.  "It  would  seem,"  says  Reade,  J.,  "that  there  ought  to  be 
no  difficulty  in  determining  whether  any  given  state  of  facts  amounts 
to  an  assault;  but  the  behavior  of  men  towards  each  other  varies  by 
such  mere  shades  that  it  is  sometimes  very  difficult  to  characterize 
properly  their  acts  and  words."  State  v.  Hampton,  63  N.  C.  14. 
While  the  law  relating  to  this  crime  would  seem  to  be  simple  and  of 
easy  application,  we  are  often  perplexed  in  our  attempt  to  dis- 
criminate between  what  is  and  what  is  not  an  assault.  But  in  this 
■case  we  have  no  such  difficulty,  as  the  law  applicable  to  the  facts 
has  been  clearly  stated  and  well  settled  by  the  decisions  of  this  court. 

An  assault  is  an  intentional  offer  or  attempt  by  violence  to  do  any 
injury  to  the  person  of  another.  There  must  be  an  offer  or  attempt. 
Mere  words,  however  insulting  or  abusive,  will  not  constitute  an  as- 
sault; nor  will  a  mere  threat  or  violence  menaced,  as  distinguished 
from  violence  begun  to  be  executed.  Where  an  unequivocal  pur- 
pose of  violence  is  accompanied  by  any  act  which,  if  not  stopped  or 
diverted,  will  be  followed  by  personal  injury,  the  execution  of  the 
purpose  is  then  begun,  and  there  has  been  a  sufficient  offer  or  attempt. 
State  V.  Davis,  23  N.  C.  125,  35  Am.  Dec.  735;  State  v.  Reavis,  113 
N.  C.  677,  18  S.  E.  388.  This  principle,  as  stated  by  Judge  Gaston 
in  the  first  case  cited,  has  been  adopted  as  a  correct  exposition  of  the 
law  of  assault,  not  only  in  subsequent  decisions  of  this  court,  but  in 
numerous  ca^es  decided  in  the  courts  of  the  other  states.  There  must, 
therefore,  be  not  only  threatening  words  or  violence  menaced,  but  the 
defendant  must  have  committed  some  act  in  execution  of  his  purpose. 
It  is  not  necessary  at  all  that  his  words  should  be  accompanied  or 
followed  by  an  actual  battery,  for  a  mere  assault  excludes  the  idea 
of  a  battery ;  but  he  must  either  offer  to  do  violence,  as  by  drawing 
back  his  fist  or  raising  a  stick,  or  attempt  to  do  it,  as  by  aiming  a 
blow  at  another,  which  does  not  take  eft'ect  because  it  is  warded  off  by 
a  third  person,  or  by  shooting  at  another  and  missing  the  mark,  all 
of  which  is  clearly  and  fully  explained  by  Pearson,  C.  J.,  in  State  v. 
Myerfield,  61  N.  C.  108.  It  is  not  necessary,  in  view  of  the  facts 
of  this  case,  that  we  should  stop  here  to  state  how  these  acts  can  be 
qualified  by  words  or  otherwise,  and  with  what  restrictions  or  excep- 
tions, so  as  to  relieve  the  accused  of  any  guilt.  The  law  in  this  respect 
is  also  discussed  in  Myerfield's  Case,  supra. 

The  principle  is  well  established  that  not  only  is  a  person  who  offers 
or  attempts  by  violence  to  injure  the  person  of  another  guilty  of  an 
assault,  but  no  one  by  the  show  of  violence  has  the  right  to  put  an- 


ASSAULT   AND    BATTERY  130 

Other  in  fear  and  thereby  force  him  to  leave  a  place  where  he  has 
the  right  to  be.  State  v.  Hampton,  63  N.  C.  13;  State  v.  Church, 
63  N.  C.  15;  State  v.  Rawlcs,  65  N.  C.  334;  State  v.  Shipman,  81 
N.  C.  513;  State  v.  Martin,  85  N.  C.  508,  39  Am.  Rep.  711;  State 
V.  Jeffreys,  117  N.  C.  743,  23  S.  E.  175.  It  is  not  always  necessary, 
to  constitute  an  assault,  that  the  person  whose  conduct  is  in  question 
should  have  the  present  capacity  to  inflict  injury;  for  if  by  threats 
or  a  menace  of  violence  which  he  attempts  to  execute,  or  by  threats 
and  a  display  of  force,  he  causes  another  to  reasonably  apprehend 
imminent  danger,  and  thereby  forces  him  to  do  otherwise  than  he 
would  have  done,  or  to  abandon  any  lawful  purpose  or  pursuit,  he 
commits  an  assault.  It  is  the  apparently  imminent  danger  that  is 
threatened,  rather  than  the  present  ability  to  inflict  injury,  which  dis- 
tinguishes violence  menaced  from  an  assault.  State  v.  Jeffries  and 
State  V.  Martin,  supra.  It  is  sufficient  if  the  aggressor,  by  his  con- 
duct, lead  another  to  suppose  that  he  will  do  that  which  he  apparently 
attempts  to  do.  1  Archb.  Cr.  Pr.,  PI.  &  Ev.  (8th  Ed.  by  Pomeroy) 
907,  908. 

If,  therefore,  the  defendant  had  threatened  the  prosecutor  with  vio- 
lence and  the  threat  had  been  accompanied  by  any  show  of  force, 
such  as  drawing  a  sword  or  knife,  or  if  he  had  advanced  towards  the 
prosecutor  in  a  menacing  attitude,  even  without  any  weapon,  and  had 
iDeen  stopped  before  he  delivered  a  blow,  and  the  prosecutor  had  been 
put  in  fear  and  compelled  to  leave  the  place  where  he  had  the  lawful 
right  to  be,  the  assault  would  have  been  complete,  although  he  was 
not  at  the  time  in  striking  distance.  But  in  this  case,  so  far  as  the 
facts  recited  in  the  first  instruction  should  be  considered,  there  was  not 
even  violence  menaced,  but,  at  most,  only  offensive  and  profane  words. 
There  must  be  an  overt  act,  or  an  attempt,  or  the  unequivocal  appear- 
ance of  an  attempt,  with  force  and  violence  to  do  a  corporal  injury — 
such  an  act  as  will  convey  to  the  mind  of  the  other  person  a  well- 
grounded  apprehension  of  personal  injury.  Bare  words  will  never  do ; 
for,  however  violent  they  may  be,  they  cannot  take  the  place  of  that 
force  which  is  necessary  to  complete  the  offense.  They  are  often  the 
exhibition  of  harmless  passion,  and  do  not  by  themselves  constitute  a 
breach  of  the  peace,  as  the  law  supposes  that  against  mere  rudeness 
of  language  ordinary  firmness  will  be  a  sufficient  protection.  State  v. 
Covington,  70  N.  C.  71. 

It  may  be,  as  suggested,  that  the  positions  of  the  two  parties  were 
relatively  unequal,  as  the  defendant  belonged  to  a  strong  and  dominant 
and  the  prosecutor  to  a  weak  and  servile  race,  and  it  may  further  be 
that  the  words  of  the  prosecutor  as  he  approached  the  defendant  were 
the  cringing  utterances  of  servility  and  showed  great  humility  and 
submissiveness,  because  of  the  lowliness  of  his  station  in  life  as  com- 
pared with  that  of  the  defendant,  and  therefore  he  abjectly  obeyed  the 
latter's  command  to  come  to  him.    All  this  may  be  true ;   and  while  it 


140  OFFENSES   AGAINST   THE    PERSON 

reflects  little  credit  upon  the  defendant,  whose  conduct  as  it  now  ap- 
pears to  us  cannot  be  too  severely  condemned,  it  cannot  have  the  effect 
of  reversing  a  long-established  principle  of  the  law  to  which  we  must 
adhere;  it  being  founded  upon  reason  and  justice  and  treated  by  the 
courts  and  the  text-writers  as  one  of  universal  application.  The  case 
of  State  V.  Milsaps,  82  N.  C.  549,  illustrates  the  extent  to  which  the 
principle  has  been  carried.  In  that  case  it  appeared  that  the  defendant 
addressed  grossly  insulting  language  to  the  prosecutor,  and  then  pick- 
ed up  a  stone  about  12  feet  from  the  prosecutor,  but  did  not  offer  to 
throw  it;  and  the  court  held  that  it  was  not  an  assault,  but  only  vio- 
lence menaced,  and  it  was  therefore  error  for  the  lower  court  to 
charge  the  jury  that  if  the  acts  and  words  of  the  defendant  were  such 
as  to  put  a  man  of  ordinary  firmness  in  fear  of  immediate  danger, 
and  the  defendant  had  the  ability  at  the  time  to  inflict  an  injury,  he 
would  be  guilty.  Substantially  to  the  same  effect  is  State  v.  Mooney, 
61  N.  C.  434.  See,  also,  Johnson  v.  State,  43  Tex.  576.  In  neither 
of  those  cases,  though,  was  the  prosecutor  deterred  from  doing  what 
he  had  a  right  to  do,  or  in  any  respect  unlawfully  restrained  in  his 
action  or  conduct  or  constrained  to  act  contrary  to  his  wishes.  *  *  * 
New  trial. 


CHAPMAN  V.  STATE. 
(Supreme  Court  of  Alabama,  1884.    78  Ala.  463,  50  Am.  Rep.  42.) 

SoME^RViLLE,  J.  The  defendant  was  indicted  for  an  assault  and 
battery  upon  the  person  of  one  McLeod,  and  was  convicted  of  a  mere 
assault. 

It  may  be  that,  if  the  indictment  had  been  for  robbery,  the  facts  in 
evidence  would  have  sustained  the  allegation  of  an  assault,  which,  in 
cases  of  that  nature,  is  often  merely  constructive ;  for  every  attempt 
at  robbery,  or  to  commit  rape,  or  to  do-  other  like  personal  injury, 
involves  within  it  the  idea  of  an  assault,  either  actual  or  constructive. 

The  present  conviction,  however,  can  be  sustained  only  on  the  theory 
that  it  was  an  assault  for  the  defendant  to  present  or  aim  an  unloaded 
gun  at  the  person  charged  to  be  assaulted,  in  such  a  menacing  manner 
as  to  terrify  him,  and  within  such  distance  as  to  have  been  dangerous, 
had  the  weapon  been  loaded  and  discharged.  On  this  question  the 
adjudged  cases,  both  in  this  country  and  in  England,  are  not  agreed, 
and  a  like  difference  of  opinion  prevails  among  the  most  learned  com- 
mentators on  the  law.  We  have  had  occasion  to  examine  these  au- 
thorities with  some  care  on  more  occasions  than  the  present;  and  we 
are  of  the  opinion  that  the  better  view  is  that  presenting  an  unloaded 
gun  at  one  who  supposes  it  to  be  loaded,  although  within  the  distance 
the  gun  would  carry  if  loaded,  is  not  without  more,  such  an  assault 
as  can  be  punished  criminally,  although  it  may  sustain  a  civil  suit  for 


ASSAULT   AND   BATTERY  141 

damages.  The  conflict  of  authorities  on  the  subject  is  greatly  at- 
tributable to  a  failure  to  observe  the  distinction  between  these  two 
classes  of  cases.  A  civil  action  would  rest  upon  the  invasion  of  a  per- 
son's "right  to  live  in  society  without  being  put  in  fear  of  personal 
harm,"  and  can  often  be  sustained  by  proof  of  a  negligent  act  result- 
ing in  unintentional  injury.  Peterson  v.  Haffner,  59  Ind.  130,  26  Am. 
Rep.  81 ;  Cooley  on  Torts,  161.  An  indictment  for  the  same  act  could 
be  sustained  only  upon  satisfactory  proof  of  criminal  intention  to  do 
personal  harm  to  another  by  violence.  State  v.  Davis,  23  N.  C.  125,  35 
Am.  Dec.  735.  The  approved  definition  of  an  assault  involves  thq 
idea  of  an  inchoate  violence  to  the  person  of  another,  with  the  present 
means  of  carrying  the  intent  into  effect ;  2  Greenl.  Ev.  §  82 ;  Roscoe's 
Cr.  Ev.  (7th  Ed.)  296;  People  v.  Lilley,  43  Mich.  521,  5  N.  W.  982. 
Most  of  our  decisions  recognize  the  old  view  of  the  text-books  that 
there  can  be  no  criminal  assault  without  a  present  intention,  as  well 
as  present  ability,  of  using  some  violence  against  the  person  of  an- 
other; 1  Russ.  Cr.  (9th  Ed.)  1019;  State  v.  Blackwell,  9  Ala.  79; 
Tarver  v.  State,  43  Ala.  354.  In  Lawson  v.  State,  30  Ala.  14,  it  was 
said  that,  "to  constitute  an  assault,  there  must  be  the  commencement 
of  an  act  which,  if  not  prevented,  would  produce  a  battery."  The 
case  of  Balkum  v.  State,  40  Ala.  671,  which  was  decided  by  a  divided 
court,  probably  does  not  harmonize  with  the  foregoing  decisions. 

It  is  true  that  some  of  the  modern  text-writers  define  an  assault 
as  an  apparent  attempt  by  violence  to  do  corporal  hurt  to  another, 
thus  ignoring  entirely  all  question  of  any  criminal  intent  on  the  part 
of  the  perpetrator.  1  Whart.  Cr.  Ev.  §  603 ;  2  Bish.  Cr.  Law,  §  32. 
The  true  test  cannot  be  the  mere  tendency  of  an  act  to  produce  a 
breach  of  the  peace ;  for  opprobrious  language  has  this  tendency,  and 
no  words,  however  violent  or  abusive,  can  at  common  law  constitute 
an  assault.  It  is  unquestionably  true  that  an  apparent  attempt  to  do 
corporal  injury  to  another  may  often  justify  the  latter  in  promptly 
resorting  to  measures  of  self-defense.  But  this  is  not  because  such 
apparent  attempt  is  itself  a  breach  of  the  peace,  for  it  may  be  an  act 
entirely  innocent.  It  is  rather  because  the  person  who  supposes  him- 
self to  be  assaulted  has  a  right  to  act  upon  appearances,  where  they 
create  reasonable  grounds  from  which  to  apprehend  imminent  peril. 
There  can  be  no  difference,  in  reason,  between  presenting  an  un- 
loaded gun  at  an  antagonist  in  an  affxay  and  presenting  a  walking 
cane  as  if  to  shoot,  provided  he  honestly  believes,  and  from  the  cir- 
cumstances has  reasonable  ground  to  believe,  that  the  cane  was  a 
loaded  gun.  Each  act  is  a  mere  menace,  the  one  equally  with  the 
other;  and  mere  menaces,  whether  by  words  or  acts,  without  intent 
or  ability  to  injure,  are  not  punishable  crimes,  although  they  may 
often  constitute  sufficient  ground  for  a  civil  action  for  damages.  The 
test,  moreover,  in  criminal  cases,  cannot  be  the  mere  fact  of  unlaw- 
fully putting  one  in  fear,  or  creating  alarm  in  the  mind;    for  one  may 


142  OFFENSES   AGAINST   THE    PERSON 

obviously  be  assaulted,  although  in  complete  ignorance  of  the  fact., 
and,  therefore,  entirely  free  from  alarm.  People  v.  Lilley,  43  Mich. 
525,  5  N.  W.  982,  1  Crim.  Law.  Mag.  605.  And  one  may  be  put  in 
fear  under  pretense  of  begging,  as  in  Taplin's  Case,  occurring  during 
the  riots  in  London,  decided  in  1780,  and  reported  in  2  East,  P.  C.  712, 
and  cited  in  many  of  the  other  old  authorities.  These  views  are  sus- 
tained by  the  spirit  of  our  own  adjudged  cases,  cited  above,  as  well 
as  by  the  following  authorities,  which  are  directly  in  point:  2  Greenl. 
Cr.  Law  Rep.  pp.  271-275,  and  note,  where  all  the  cases  are  fully 
reviewed;  2  Addison  on  Torts  (Wood's  Ed.  1881)  pp.  4-7,  §  788, 
note  1;  Roscoe's  Crim.  Ev.  (7th  Ed.)  296;  1  Russell  Cr.  (9th  Ed.) 
1020;  Blake  v.  Barnard,  9  C.  &  P.  626;  Reg.  v.  James,  1  C.  &  P. 
530;  Robinson  v.  State,  31  Tex.  170;  McKay  v.  State,  44  Tex.  43; 
State  V.  Davis,  23  N.  C.  125,  35  Am.  Dec.  735. 

The  opposite  view  is  sustained  by  the  following  authors  and  ad- 
judged cases:  7  Bish.  Cr.  Law  (7th  Ed.)  §  32;  1  Whart.  Cr.  Law 
(9th  Ed.)  §§  603,  182;  Reg.  v.  St.  George,  9  C.  &  P.  483;  Com- 
monwealth v.  White,  110  Mass.  407;  State  v.  Shepard,  10  Iowa, 
126;  State  v.  Smith,  2  Humph.  (Tenn.)  457.  See,  also,  3  Greenl. 
Ev.  (14th  Ed.)  §  59,  note  "b";  1  Arch.  Cr.  Pr.  &  PL  (Pomeroy's 
Ed.)  907,  282-283;  State  v.  Benedict,  11  Vt.  238,  34  Am.  Dec.  688; 
State  v.  Neely,  74  N.  C.  425,  21  Am.  Rep.  496. 

The  rulings  of  the  court  were  opposed  to  these  views ;  and  the 
judgment  must  therefore  be  reversed,  and  the  cause  remanded. 


STATE  V.  DAVIS. 
(Court  of  Appeals  of  South  Carolina,  1S32.    1  Hill,  46.) 

Indictment  for  assault  and  battery,  at  Edgefield.  Fall  term,  1832. 
Verdict — Guilty. 

Johnson,  J.,®  delivered  the  opinion  of  the  court. 

The  case  made  by  the  judge's  notes,  taken  on  the  trial,  and  the 
concessions  at  the  bar,  appears  to  be  this :  Mr.  Griffin,  a  gentlem.an 
of  the  bar,  placed  in  the  hands  of  James  Robertson,  the  prosecutor, 
one  of  the  deputy  sherififs  of  Edgefield  district,  a  paper  purporting  to 
be  a  mortgage  on  a  negro,  then  in  the  possession  of  Davis.  Robert- 
son found  the  negro  at  Hamburg,  and  took  him  into  his  possession ; 
and  having  occasion  to  stop  for  the  night  on  his  way  to  Edgefield, 
when  he  went  to  bed  he  chained  the  negro  to  his  bedpost,  and  in 
addition  to  this  tied  the  negro  with  a  rope,  one  end  of  which  was 
tied  to  his  own  body.    The  defendants  came  to  the  house  at  night,  and 

0  I'art  of  the  opinion  is  omitted. 


ASSAULT   AND    BATTERY  145 

avowed  their  determination  to  retake  the  negro  at  all  hazards,  and, 
despite  of  Robertson's  remonstrances,  broke  the  chain,  cut  the  rope, 
and  carried  the  negro  off,  without  having  done  any  other  violence  to 
the  person  of  the  prosecutor;  and  the  leading  question  is  whether 
this,  in  law,  was  an  assault. 

The  general  rule  is  that  any  attempt  to  do  violence  to  the  person 
of  another,  in  a  rude,  angry,  or  resentful  manner,  is  an  assault;  and 
raising  a  stick  or  fist  within  striking  distance,  pointing  a  gun  within 
the  distance  it  will  carry,  spitting  in  one's  face,  and  the  like,  are  the 
instances  usually  put  by  way  of  illustration.  No  actual  violence  is 
done  to  the  person  in  any  one  of  these  instances ;  and  I  take  it  as  very 
clear  that  that  is  not  necessary  to  an  assault.  It  has  therefore  been 
held  that  beating  a  house  in  which  one  is,  striking  violently  a  stick 
which  he  holds  in  his  hand,  or  the  horse  on  which  he  rides,  is  an 
assault ;  the  thing  in  these  instances  partaking  of  the  personal  in- 
violability. Respublica  v.  De  Longchamps,  1  Dall.  (Pa.)  114,  1  L. 
Ed.  59;  Wambough  v.  Schank,  2  N.  J.  Law,  229,  cited  2  part.  Esp. 
Dig.  173.  What  was  the  case  here?  Laying  the  right  of  property  in 
the  negro  out  of  the  question,  the  prosecutor  was  in  possession,  and, 
legally  speaking,  the  defendants  had  no  right  to  retake  him  with  force. 
As  far  as  words  could  go,  their  conduct  was  rude  and  violent  in  the 
extreme.  They  broke  the  chain  with  which  the  negro  was  confined 
to  the  bedpost,  in  which  the  prosecutor  slept,  and  cut  the  rope  by 
which  he  was  confined  to  his  person,  and  are  clearly  within  the  rule. 
The  rope  was  as  much  identified  with  his  person  as  the  hat  or  coat 
which  he  wore,  or  the  stick  which  he  held  in  his  hand.  The  convic- 
tion was,  therefore,  right.     *     *     * 

Motion  dismissed. 


FLOYD  v.  STATE. 

(Supreme  Court  of  Georgia,  1867.    36  Ga.  91,  91  Am.  Dec.  760.) 

Indictment  for  stabbing.  Motion  for  new  trial.  Decided  by  Judge 
Holt,  Burke  superior  court,  November  term,  1860. 

Floyd  stood  conversing  with  the  two  Messrs.  Brinson.  He  had 
open  in  his  hand  such  a  knife  as  farmers  carry,  and  was  perhaps 
whittling  or  cleaning  his  finger  nails. 

Whilden  approached  and  asked  Floyd  if  he  had  been  accusing 
him  of  collecting  money  for  his  (Floyd's)  slave  and  stealing  it.  Floyd 
said  he  did.  Immediately  Whilden  struck  Floyd  with  his  fist,  and 
Floyd  stabbed  him,  and,  pursuing  Whilden,  who  walked  backward, 
continued  stabbing  him. 

Whilden  drew  his  knife.  Floyd  ran.  Whilden  caught  him  and 
stabbed  him.     An  interval  occurred,  while  each  was  examining  his 


114     ■  OFFENSES   AGAINST   THE    PERSON 

wounds.  Whilden  got  an  ax  helve,  ran  after  Floyd  (who  retreated), 
and  beat  him.''     *     *     * 

Harris,  J.  The  general  rule  in  criminal  law  in  reference  to  assaults 
made  on  a  person,  and  how  they  may  be  repelled  defensively,  is  that 
contained  in  the  charge  of  Judge  Holt  to  the  jury  which  tried  this  in- 
dictment :  "That  whether  the  stabbing  by  plaintiff  in  error  amounted 
to  self-defense  depended  on  the  nature  and  violence  of  the  assault 
made  on  him."  In  this  case  the  plaintiff  in  error  received  a  blow  with 
the  fist  of  the  assailant.  As  it  does  not  appear  by  the  record  that 
there  was  great  superiority  in  physical  strength  on  the  part  of  the 
assailant  over  that  possessed  by  Floyd,  nor  it  appearing  that  Floyd 
was  in  ill  health  at  the  time,  nor  other  circumstance  existing  at  the 
time  which  produced  relatively  great  inequality  between  them  for  sud- 
den combat,  we  are  not  able  to  find  any  fact  in  the  case  which  could 
justify  him  in  repelling  the  blow  of  the  fist  by  the  use  of  his  knife.  As 
a  general  rule  it  may  safely  be  asserted  that  the  law  will  not  excuse 
or  justify  a  man  who  repels  a  blow  given  him  with  the  fist  by  stabbing 
the  assailant. 

Judgment  affirmed. 


BOYD  V.  STATE.' 

(Supreme  Courfi  of  Alabama,  1SS9.     88  Ala.  169,  7  South.  268, 

16  Am.  St.  Rep.  31.) 

SoMERViLLE,  J.*  The  defendant,  a  schoolmaster,  being  indicted, 
was  convicted  of  an  assault  and  battery  on  one  Lee  Crowder,  a  pupil 
in  his  school,  who  is  shown  to  have  been  about  18  years  of  age. 
The  defense  is  that  the  alleged  battery  was  a  reasonable  chastisement 
inflicted  by  the  master  in  just  maintenance  of  discipline,  and  in 
punishment  of  conduct  on  the  part  of  the  pupil  which  tended  to  the 
subversion  of  good  order  in  the  school. 

The  case  involves  a  consideration  of  the  proper  rule  of  law  pre- 
scribing the  extent  of  the  schoolmaster's  authority  to  administer  cor- 
poral correction  to  a  pupil. 

The  principle  is  commonly  stated  to  be  that  the  schoolmaster,  like 
the  parent,  and  others  in  foro  domestico,  has  the  authority  to  moder- 
ately chastise  pupils  under  his  care,  or,  as  stated  by  Chancellor  Kent, 
"the  right  of  inflicting  moderate  correction,  under  the  exercise  of  a 
sound  discretion."  2  Kent's  Com.  *203,  *206.  In  other  words,  he 
may  administer  reasonable  correction,  which  must  not  "exceed  the 
bounds  of  due  moderation,  either  in  the  measure  of  it,  or  in  the  in- 
strument made  use  of  for  the  purpose."     If  he  go  beyond  this  ex- 

7  The  statement  of  facts  is  abridged. 

8  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


ASSAULT    AND   BATTERY 


145 


tent,  he  becomes  criminally  liable,  and,  if  death  ensues  from  the 
brutal  injuries  inflicted,  he  may  be  liable,  not  only  for  assault  and 
battery,  but  to  the  penalties  of  manslaughter,  or  even  murder,  ac- 
cording to  the  circumstances  of  the  case.    1  Archbold's  Cr.  Prac.  *218; 

1  Bish.  Cr.  Law  (7th  Ed.)  §§  881,  882. 

This  power  of  correction,  vested  by  law  in  parents,  is  founded  on 
their  duty  to  maintain  and  educate  their  offspring.  In  support  of 
that  authority,  they  must  have  "a  right  to  the  exercise  of  such  dis- 
cipline as  may  be  requisite  for  the  discharge  of  their  sacred  trust." 

2  Kent's  Coni.  *203.  And  this  power,  allowed  by  law  to  the  parent 
over  the  person  of  the  child,  "may  be  delegated  to  a  tutor  or  instruc- 
tor, the  better  to  accomplish  the  purpose  of  education."  Id.  *205 ; 
1  Black.  Com.  *507. 

The  better  doctrine  of  the  adjudged  cases,  therefore,  is  that  the 
teacher  is,  within  reasonable  bounds,  the  substitute  for  the  parent, 
exercising  his  delegated  authority.  He  is  vested  with  the  power  to 
administer  moderate  correction  with  a  proper  instrument  in  cases 
of  misconduct,  which  ought  to  have  some  reference  to  the  character 
of  the  offense  and  the  sex,  age,  size,  and  physical  strength  of  the 
pupil.  When  the  teacher  keeps  within  the  circumscribed  sphere  of  his 
authority,  the  degree  of  correction  must  be  left  to  his  discretion,  as 
it  is  to  that  of  the  parent,  under  like  circumstances.  Within  this 
limit,  he  has  the  authority  to  determine  the  gravity  or  heinousness 
of  the  offense,  and  to  mete  out  to  the  off'ender  the  punishment  which 
he  thinks  his  conduct  justly  merits ;  and  hence  the  parent  or  teacher 
is  often  said,  pro  hac  vice,  to  exercise  "judicial  functions." 

All  of  the  authorities  agree  that  he  will  not  be  permitted  to  deal 
brutally  with  his  victim,  so  as  to  endanger  life,  limb,  or  health.  He 
will  not  be  permitted  to  inflict  "cruel  and  merciless  punishment." 
Schouler's  Dom.  Rel.  (4th  Ed.)  §  244.  He  cannot  lawfully  disfigure 
him,  or  perpetrate  on  his  person  any  other  permanent  injury.  As 
said  by  Gaston,  J.,  in  State  v.  Pendergrass,  19  N.  C.  365,  31  Am.  Dec. 
416,  a  case  generally  approved  by  the  weight  of  American  authority: 
"It  may  be  laid  down  as  a  general  rule  that  teachers  exceed  the  limit 
of  their  authority  when  they  cause  lasting  mischief,  but  act  within  the 
limits  of  it  when  they  inflict  temporary  pain." 

There  are  some  well-considered  authorities  which  hold  teachers 
and  parents  alike  liable  criminally  if,  in  the  infliction  of  chastisement, 
they  act  clearly  without  the  exercise  of  reasonable  judgment  and 
discretion.  The  test  which  seems  to  be  fixed  by  these  cases^is  the 
general  judgment  of  reasonable  men.  Patterson  v.  Nutter,  78  Me. 
509,  7  Atl.  273,  57  Am.  Rep.  818.  The  more  correct  view,  however, 
and  the  one  better  sustained  by  authority,  seems  to  be  that  when,  in 
the  judgment  of  reasonable  men,  the  punishment  inflicted  is  immoder- 
ate or  excessive,  and  a  jury  would  be  authorized  from  the  facts  of  the 
case  to  infer  that  it  was  induced  by  legal  malice  or  wickedness  of 

MiKELL  CaS.CB.L. 10 


146  OFFENSES    AGAINST   THE   PERSON 

motive,  the  limit  of  lawful  authority  may  be  adjudged  to  be  passed. 
In  determining  this  question,  the  nature  of  the  instrument  of  correction 
used  may  have  a  strong  bearing  on  the  inquiry  as  to  motive  or  inten- 
tion. The  latter  view  is  indorsed  by  Mr.  Freeman,  in  his  note  to  the 
case  of  State  v.  Pendergrass,  31  Am.  Dec.  419,  as  the  more  correct. 
"The  qualification,"  he  observes,  "that  the  schoolmaster  shall  not  act 
from  malice,  will  protect  his  pupils  from  outbursts  of  brutality,  whilst, 
on  the  other  hand,  he  is  protected  from  liability  for  mere  errors  of 
judgment."  Lander  v.  Seaver,  32  Vt.  114,  76  Am.  Dec.  156,  and  note 
pp.  164-167;   State  v.  Alford,  68  N.  C.  322;    State  v.  Harris,  63  N. 

Q    I       *      *      * 

Tliere  was  evidence  in  this  case  from  which  the  inference  of  malice 
could  have  been  deduced  as  influencing  the  conduct  of  the  defendant 
in  his  chastisement  of  young  Crowder,  both  as  to  his  outbursts  of 
temper  and  in  the  use  of  improper  instruments  of  correction.  Taking, 
as  we  must,  every  reasonable  inference  which  the  judge,  acting  as  a 
jury,  could  have  drawn  from  the  evidence,  we  take  as  true,  among 
others,  the  following  facts :  That  after  the  severe  chastisement  ad- 
ministered in  the  schoolroom  the  defendant  followed  Crowder  into 
the  schoolyard,  and  struck  him  with  "a  limb  or  stick,"  and  then  "put 
his  hands  in  his  pocket,  as  if  to  draw  a  knife";  that,  although  Crowder 
did  not  strike  back,  but  only  protested  against  and  resisted  casti- 
gation,  and,  after  apologizing  for  the  objectionable  language  imputed 
to  him,  asked  permission  to  withdraw  from  the  school,  the  defendant, 
after  promising  not  to  strike  him,  "afterwards  struck  him  in  the 
face  three  licks  with  his  fist,  and  hit  him  several  licks  over  the 
head  with  the  butt  end  of  the  switch."  From  these  blows  the  eye  of 
the  young  man  was  "considerably  swollen,"  and  was  "closed  for 
several  days."  The  attending  physician  testified  thaf  there  were 
"marks  on  his  head  made  by  a  stick,  in  his  opinion."  One  witness 
asserts  that  the  defendant  declared  he  "would  conquer  him  (Crowder) 
or  kill  him."  All  the  witnesses  for  the  state  say  that  the  defendant 
was  apparently  very  angry  all  the  time,  and  was  very  much  excited, 
and  after  he  got  through  whipping  Crowder  he  remarked,  in  an  ex- 
cited, angry  voice,  in  the  presence  of  the  school  and  others,  that  he 
"could  whip  any  man  in  China  Grove  beat."  From  this  unseemly 
conduct  on  the  part  of  one  whose  duty  it  was  to  set  a  good  example* 
of  self-restraint  and  gentlemanly  deportment  to  his  pupils,  there  was 
ample  room  for  the  inference  of  legal  malice,  in  connection  with  un- 
reasonable and  immoderate  correction.  Nor  was  the  limb  of  a  tree, 
of  the  size  indicated  by  the  evidence,  nor  a  clinched  fist  applied 
in  bruising  the  pupil's  eye,  after  the  manner  of  a  prize  fighter,  a 
proper  instrument  of  correction  to  be  used  on  such  an  occasion. 

The  conviction  must  accordingly  be  sustained,  without  assuming 
any  jurisdiction  to  review  the  correctness  of  the  judge's  finding  on 
the  facts. 

Afiirmed. 


ASSAULT   AND   BATTERY  147 

STATE  V.  BECK. 

(Supreme  Court  of  South  Carolina,  1S33.     I  Hill,  363,  26  Am.  Dec.  190.) 

Tried  before  Mr.  Justice  Richardson,  at  Pickens,  fall  term,  1833. 

Indictment  for  an  assault  and  battery.  The  defendants  were  all  ac- 
quitted, except  William  Beck.  The  facts  were  these:  One  of  the 
defendants  had  lost  leather,  and,  suspecting  it  was  stolen,  got  Beck 
and  the  other  defendants  to  aid  him  in  t\re  search.  They  found  the 
leather  on  the  premises  of  Noble  Anderson,  and  immediately  took  him 
into  custody — whether  under  warrant  or  not,  did  not  appear.  Whilst 
in  this  state;  some  one,  not  Beck,  asked  Anderson  if  he  would  not 
rather  be  whipped  than  go  to  jail.  He  replied  he  would,  and  then  re- 
quested Beck  to  whip  him.  Beck  at  first  hesitated,  but  finally  at  the 
earnest  entreaty  of  Anderson,  and  saying,  "If  it  will  oblige  you,  I  will 
do  it,"  consented ;  and,  Anderson  putting  his  arms  around  a  tree,  he 
gave  him  a  few  stripes  with  a  switch.  Anderson  was  then  released, 
but  was  afterwards  prosecuted,  convicted,  and  punished  for  stealing 
the  leather.  Under  these  circumstances  the  presiding  judge  charged 
the  jury  that  Beck  was  clearly  guilty,  and  they  found  accordingly.  He 
now  moves  for  a  new  trial,  on  the  ground  that  the  whipping,  having 
been  inflicted  at  the  importunity  of  Anderson  and  against  the  inclina- 
tion of  the  defendant,  was  not  an  assault  and  battery. 

Harper,  J.  We  do  not  think  the  act  in  question  amounts  to  an  as- 
sault and  battery  on  the  part  of  defendant  Beck.  A  battery  is  gen- 
erally defined  to  be  any  injury  done  to  the  person  of  another  in  a  rude, 
insolent,  or  revengeful  way.  There  is  also  another  class  of  cases 
where  some  degree  of  negligence  may  be  imputed ;  as  when  a  person 
throwing  stones  into  the  highway  strikes  another  passing,  or  as  in  the 
instance  of  a  person  throvv^ing  a  lighted  squib  into  a  crowd.  But  when 
there  is  no  intention  to  injure  and  no  negligence,  I  do  not  think 
the  offense  can  be  imputed.  An  instance  commonly  put  is  that  of  a 
soldier  firing  his  piece  at  muster,  and  without  any  fault  of  his  own  in- 
juring another  casually  and  suddenly  passing  before  it.  A  surgeon, 
who  for  his  patient's  health,  cuts  off  a  limb,  is  not  guilty  of  mayhem ; 
or,  if  one  plucks  a  drowning  man  out  of  a  river  by  the  hair  of  his  head, 
this  is  no  assault.  If,  according  to  the  prescription  of  the  physician  in 
the  Arabian  Nights,  a  physician  should  beat  his  patient  with  a  mallet 
for  the  bona  fide  purpose  of  restoring  his  health,  though  this  might  be 
malpractice,  it  would  be  no  battery.  Where  one  gave  another  a  license 
to  beat  him,  there  is  a  case  in  which  it  is  said  the  license  was  held  void. 
This  may  well  be.  The  person  receiving  the  license  entertained  hos- 
tile dispositions  toward  the  other,  and,  upon  being  thus  licensed,  pro- 
ceeded to  carry  his  revengeful  purpose  into  efi[ect.  But  in  the  case 
before  us  the  defendant  had  no  evil  disposition  toward  Anderson  but 
the  contrary;   and  at  his  own  earnest  request,  and  to  save  him  from 


148  OFFENSES    AGAINST   THE   PEKSON 

what  he  considered  a  greater  evil,  reluctantly  consented  to  inflict  the 
stripes.  However  ill-judged  the  act  may  have  been,  I  cannot  think  it 
constituted  an  assault  and  battery.  The  case  might  be  different  with 
respect  to  the  other  defendants,  who  were  acquitted ;  but  as  to  the  de- 
fendant before  us  the  motion  for  a  new  trial  must  be  granted. 
Johnson  and  O'Neall,  ]].,  concurred. 


SIMITH  V.  STATE. 
(Supreme  Court  of  Tennessee,  1S40.     7  Humph.  43.) 

GrSEN,  J.,^  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  was  indicted  for  an  assault  and  false  imprison- 
ment of  Mark  M.  Rodgers.  The  court  charged  the  jury  "that,  to  make 
out  the  offense  as  charged,  no  actual  force  was  necessary,  but  that  a 
man  might  be  assaulted  by  being  beset  by  another ;  and  if  the  opposi- 
tion to  the  prosecutor's  going  forward  was  such  as  a  prudent  man 
w^ould  not  risk,  then  the  defendant  would,  in  contemplation  of  law, 
be  guilty  of  false  imprisonment." 

This  charge  is  correct  in  all  its  parts,  and  the  facts  were  fairly  left 
to  the  jury.  A  verdict  of  guilty  has  been  pronounced,  and  we  do  not 
feel  authorized  to  disturb  it.  The  prosecutor  and  defendant  disputed 
about  the  ferriage  defendant  claimed.  Smith  insisted  upon  his  de- 
mand, and  said  he  did  not  choose  to  sue  every  man  that  crossed  at 
his  ferry.  Although  he  did  not  take  hold  of  the  prosecutor,  or  offer 
violence  to  his  person,  yet  his  manner  may  have  operated  as  a  moral 
force  to  detain  the  prosecutor. 

And  this  appears  the  more  probable,  as  after  the  affair  was  settled 
the  prosecutor  inquired  what  defendant  would  have  done  if  he  had  not 
paid  the  ferriage  demanded,  to  which  the  defendant  replied  that  "he 
would  have  put  his  carryall  and  horse  back  into  the  boat  and  taken 
them  across  the  river  again."  As  this  determination  existed  in  his 
mind,  it  doubtless  was  exhibited  in  the  manner  of  the  defendant,  and 
thus  operated  upon  the  fears  of  the  prosecutor. 

Affirm  the  judgment. 


COMMONWEALTH  v.  NICKERSON. 
(Supreme  Judicial  Court  of  Massachusetts,  1862.     5  Allen,  519.) 

Indictment  under  Gen.  St.  1860,  c.  160,  §  30.  The  first  count  charged 
that  the  defendants,  three  in  number,  on  the  fourth  of  August,  1860, 
at  Nahant,  committed  an  assault  and  battery  upon  Charles  A.  T.  Rice, 
and  then  and  there  without  any  lawful  authority,  and  without  the  con- 

9  The  statement  of  facts  is  omitted. 


ASSAULT   AND    BATTERY  149 

sent  and  against  the  will  of  said  Charles,  confined  and  imprisoned  him 
for  the  space  of  two  hours.     *     *     * 

DewUy,  J.^°  The  conviction  of  the  defendants  upon  the  first  count 
of  this  indictment  may  be  well  sustained.  The  evidence  shows  an  as- 
sault upon  the  person  of  C.  A.  T.  Rice,  and  a  restraint  upon  his  liberty. 
Every  such  restraint  of  the  liberty  of  a  person,  if  not  justified  by  law, 
is  in  the  eye  of  the  law  a  false  imprisonment,  for  which  the  party  was 
liable  to  an  indictment  at  common  law.  Com.  Dig.  Imprisonment,  G. ; 
3  Chit.  Crim.  Law,  835.  The  like  offence  is  now  made  punishable  by 
statute,  under  the  provisions  of  Gen.  St.  1860,  c.  160,  §  30. 

The  only  question  upon  this  count  arises  upon  the  ruling  of  the  court 
upon  that  part  of  it  which  alleges  that  the  assault  and  false  imprison- 
ment were  committed  without  the  consent  and  against  the  will  of  said 
C.  A.  T.  Rice. 

The  instructions  to  the  jury  as  to  what  would  constitute  a  seizing  and 
imprisonment  against  the  will  of  the  party  were  certainly  sufficiently 
favorable  to  the  defendants,  as  they  would  exclude  all  previous  knowl- 
edge of  their  object  or  co-operation  in  forcibly  taking  the  child  from 
the  custody  and  care  of  his  teacher,  on  the  part  of  the  child  himself. 

But  in  our  opinion  a  more  stringent  ruling  upon  this  point  would 
have  furnished  no  legal  ground  for  exception  in  matter  of  law.  The 
party  seized  and  imprisoned  was  a  child  of  tender  years.  The  legal 
custody  and  care  of  him  was  in  his  father.  This  had  been  judiciously 
settled  in  proceedings  instituted  by  the  mother  asking  ffer  his  custody. 
The  adjudication  settled  the  rights  of  the  parties  as  to  the  custody  of 
the  child,  and  rendered  illegal  and  criminal  any  attempt  on  the  part 
of  the  mother  or  agents  acting  under  her  to  obtain  by  violence  the  pos- 
session of  him. 

Being  in  the  actual  custody  of  his  father,  whose  will  alone  was  to 
govern  as  to  his  place  of  residence  and  the  selection  of  a  teacher  and 
custodian,  the  child  of  nine  years  of  age  was  incapable  of  assenting  to 
a  forcible  removal  from  the  custody  of  his  teacher,  and  a  transfer  to 
other  persons  forbidden  by  law  to  take  such  custody.  He  was  under 
illegal  restraint,  when  taken  away  from  the  lawful  custody  and  against 
the  will  of  his  rightful  custodian ;  and  such  taking  is  in  law  deemed  to 
be  forcible  and  against  the  will  of  the  child.  This  view  is  in  accord- 
ance with  that  taken  in  the  case  of  State  v.  Farrar,  41  N.  H.  53,  upon 
a  similar  indictment.  See  also  State  v.  Rollins,  8  N.  H.  550.  It  is  al- 
ways so  held  in  cases  heard  upon  a  habeas  corpus  issued  upon  the  ap- 
plication of  one  of  the  parents,  alleging  imprisonment  and  restraint  of 
the  child,  and  seeking  his  restoration ;  and  in  the  case  first  cited,  it  was 
held  equally  applicable  to  the  case  of  an  indictment  for  assault  and  im- 
prisonment of  a  child  of  tender  years. 

The  doctrine  of  the  cases  cited  from  the  English  reports,  of  indict- 

10  The  statement  of  facts  is  abridged  and  part  of  tlie  opinion  is  omitted. 


150  OFFENSES   AGAINST   THE    PERSON 

ments  for  assaults  upon  female  children,  by  indecent  familiarities 
to  which  they  assented,  and  in  which  by  reason  of  such  assent  the  acts 
done  were  held  not  to  amount  to  assault,  we  think  should  not  be  ex- 
tended to  cases  like  the  present,  where  the  abduction  from  the  lawful 
custody  of  the  father  by  violence  and  sttong  hand  is  the  substantial 
offence. 

Without  limiting  the  precise  age  in  which  a  child  would  be  held  not 
to  have  the  legal  capacity  to  assent  to  such  forcible  abduction  from  the 
custody  of  the  parent  to  whom'  such  custody  has  been  assigned  by  an 
order  of  this  Court,  the  forcible  taking  away  of  a  child  of  nine  years 
of  age,  against  the  will  of  the  father,  or  those  to  whom  his  father  had 
committed  him  for  nurture  or  education,  will  authorize  a  jury  to  find 
that  the  child  was  illegally  restrained  of  his  liberty,  whatever  may  have 
been  his  apparent  wishes  or  satisfaction  in  being  withdrawn  by  force 
from  his  place  of  legal  custody,  and,  in  the  language  of  the  law,  "his 
place  of  legal  freedom,"  and  placed  under  the  care  of  those  whose  cus- 
tody was  illegal  restraint.  *  *  *  The  result  is,  therefore,  that  the 
verdict  on  the  first  count  is  sustained,  and  judgment  may  be  entered 
thereupon,  if  the  Attorney  General  shall  enter  a  nol.  pros,  upon  the 
other  counts.     *     *     * 


OFFEKSES   AGAINST   THE    HABITATION  151 


OFFENSES  AGAINST  THE  HABITATION 

I.  Arson  ^ 


REX  V.  GOWEN. 

(King's  Beucli,  1786.    1  Leach  [4tli  Ed.]  246,  note.) 

William  Gowen  was  convicted  before  E.  C.  B.  Skinner,  of  arson. 
The  house  he  burned  was  rented  by  one  Richard  D'obney,  named  in 
the  first  count  as  the  owner,  and  let  by  him  from  year  to  year  to  the 
parish  officers  of  Laxfield,  who  paid  the  rent  for  it,  and  who  were,  at 
the  time  of  burning  the  house,  the  persons  named  (individually)  in  the 
third  count  of  the  indictment.  The  prisoner  was  a  parish  pauper,  and 
had  been  put  into  the  house  by  the  overseers  to  live  there.  He  had  the 
sole  possession  and  occupation  of  it  without  paying  any  rent,  and  was 
resident  therein  with  his  family  at  the  time  the  fact  was  committed, 
and  on  reference  to  the  judges  they  all  held  that  the  prisoner  had  no 
interest  in  the  house,  but  was  merely  a  servant,  and  therefore  it  could 
not  be  said  to  be  his  house,  but  that  the  overseers  had  the  possession 
of  it  by  means  of  his  occupation,  and  they  accordingly  held  that  he  had 
been  properly  convicted. 


REGINA  V.  RUSSELL. 

(Berkshire  Assizes,  1842.    Car,  &  M.  541.) 

Arson.  The  prisoner  was  indicted  for  maliciously  setting  fire  to 
the  house  of  Ann  Wright,  at  Old  Windsor. 

On  the  part  of  the  prosecution  Miss  Wright  was  called.  She  said : 
"The  prisoner  was  in  my  service.  Very  early  on  the  morning  of  the 
4th  of  December,  I  perceived  smoke  and  got  up,  and  on  my  going 
down  stairs  I  found  a  small  fagot  lighted  and  burning  on  the  boarded 
floor  of  the  kitchen,  about  four  feet  from  the  hearthstone.  I  took  up 
the  burning  wood  and  put  it  into  the  grate.  A  part  of  the  boards  of 
the  kitchen  floor  was  scorched  black,  but  not  burnt.  The  fagot  was 
nearly  consumed,  but  no  part  of  the  wood  of  the  floor  was  consumed. 

CrksswkIvIv,  J.  The  case  of  Regina  v.  Parker,  9  C.  P.  45,  38  E.  C. 
L.  R.  29,  is  the  nearest  to  the  present,  but  I  think  it  is  distinguishable. 

Carrington,  for  the  prisoner.     I  submit  that  the  wood  of  the  floor 

1  For  a  discussion  of  principles,  see  Clark,  on  Criminal  Law  (3d  Ed.)  §§ 
88-90. 


152  OFFENSES    AGAINST   THE    HABITATION 

being  scorched  is  not  sufficient  to  constitute  this  offense,  as  wood  may 
be  scorched  without  being  actually  on  fire. 

Cre;sswELIv,  J.  I  have  conferred  with  my  Brother  PaTTe:son,  and 
he  concurs  with  me  in  thinking  that  as  the  wood  of  the  floor  was 
scorched,  but  no  part  of  it  consumed,  the  present  indictment  cannot 
be  supported.  We  think  that  it  is  not  essential  to  this  offense  that 
wood  should  be  in  a  blaze,  because  some  species  of  wood  will  burn  and 
entirely  consume  without  blazing  at  all.  The  prisoner  must  be  ac- 
quitted. 

Verdict — Not  guilty. 


II.  Burglary 


PEOPLE  V.  DUPREE. 

(Supreme  Ck)urt  of  Micbigan,  1S93.    98  Mich.  26,  56  N.  W.  1046.) 

Grant,  J.^  The  respondent  was  convicted  of  burglary  under  section 
9132,  How.  Ann.  St.  1882.     *     *     * 

The  theory  of  the  prosecution  was  that  the  respondent,  when  in  the 
shop,  either  on  the  6th  or  7th  of  October  (the  court,  in  its  charge  re- 
ferred to  the  date  as  Friday,  October  7th),  raised  the  window  just 
enough  to  prevent  the  bolt  from  entering  the  slot,  and  there  was  evi- 
dence to  sustain  it.  It  is  insisted  that  even  if  this  was  so,  and  the  re- 
spondent raised  the  window  on  the  following  night,  it  did  not  estab- 
lish the  crime  of  burglary.  We  cannot  agree  with  this  contention.  It 
is  said  in  Dennis  v.  People,  27  Mich.  151 : 

"If  an  entry  is  effected  by  raising  a  trap-door,  which  is  kept  down 
merely  by  its  own  weight,  or  by  raising  a  window  kept  in  its  place 
only  by  pulley  weight,  instead  of  its  own,  or  by  descending  an  open 
chimney,  it  is  admitted  to  be  enough  to  support  the  charge  of  break- 
ing; and  I  am  unable  to  see  any  substantial  distinction  between  such 
cases  and  one  where  an  entry  is  effected  through  a  hanging  window 
over  a  shop  door,  and  which  is  only  designed  for  light  above,  and  for 
ventilation,  and  is  down,  and  kept  down  by  its  own  weight,  and  so 
firmly  as  to  be  opened  only  by  the  use  of  some  force,  and  so  situated 
as  to  make  a  ladder,  or  something  of  that  kind,  necessary  to  reach  it 
for  the  purpose  of  passing  through  it." 

We  think  the  doctrine  there  enunciated  covers  the  present  case.  If 
there  had  been  no  bolt,  and  respondent  had  raised  the  window  and  en- 

2  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3(1  Ed.)  §§ 
91-93. 

3  Part  of  the  opinion  is  omitted. 


BURGLARY 


153 


tered  in  the  nighttime,  under  all  the  authorities,  he  would  have  been 
guilty  of  burglary.  Upon  what  reason  can  it  be  said  that  his  removal 
of  the  bolt,  or  his  raising  the  window  a  fraction  of  an  inch,  in  the  day- 
time, changes  the  character  of  his  offense?  If  the  owner  had  failed 
to  see  that  the  bolts  were  in  place,  or  if  something  had  been  accident- 
ally placed  upon  the  window  sill,  which  was  of  slight  thickness,  but 
sufficient  to  prevent  the  bolts  from  entering  the  slots,  the  raising  of 
the  window  would  have  been  a  sufficient  breaking  to  support  the 
charge.  Rex  v.  Hyams,  7  Car.  &  P.  441 ;  State  v.  Reid,  20  Iowa,  421 ; 
Lyons  v.  People,  68  111.  280.  How  can  the  act  be  relieved  of  crim- 
inality by  secretly  fixing  the  window  in  the  daytime  so  that  the  bolt 
or  lock  will  not  be  effective,  and  thus  render  the  perpetration  of  the 
crime  more  easy  and  certain  ?  There  is  no  reason  in  such  a  rule.  In 
Lyons  v.  People,  the  door  was  left  unlocked,  and  the  court  was  re- 
quested to  instruct  the  jury  that,  in  order  tc  constitute  the  crime,  it 
must  appear  that  the  door  was  secured  in  the  ordinary  way.  The  Su- 
preme Court,  in  determining  the  question,  said : 

"We  are  not  aware  of  any  authority  which  goes  to  the  extent  of 
these  instructions.  To  hold  that  the  carelessness  of  the  owner  in  se- 
curing and  guarding  his  property  shall  be  a  justification  to  the  burglar 
or  thief  would  leave  communities  very  much  to  the  mercy  of  this  class 
of  felons.  It  would  in  effect  be  a  premium  offered  for  their  depre- 
dations, by  the  removal  of  the  apprehension  of  punishment.  Whether 
property  is  guarded  or  not,  it  is  larceny  in  the  thief  who  steals  it. 
When  a  door  is  closed,  it  is  burglary  for  any  one  with  felonious  in- 
tent to  open  it  and  enter  the  house  in  the  nighttime  without  the  owner's 
consent ;  and  it  makes  no  difference  how  many  bolts  and  bars  might 
have  been  used  to  secure  it,  but  which  were  neglected." 

The  language  of  the  court  was  perhaps  too  broad  in  stating  that  if 
the  window  was  raised  any  distance,  but  was  not  sufficient  to  permit 
the  defendant  to  enter,  and  he  raised  it  further,  it  would  be  breaking 
in  the  meaning  of  the  law,  but  the  entire  evidence  was  to  the  effect 
that  it  was  raised  so  little  as  not  to  attract  the  notice  of  the  occupant. 
We  therefore  think  that  the  jury  could  not  have  been  misled  by  the 
language.     *     *     * 

Judgment  affirmed. 


LE  MOTT'S  CASE. 

(Old  Bailey,  16—.    Kelyng,  42.) 

At  the  Sessions  I  inquired  of  Le  Mott's  Case,  which  was  adjudged 
in  the  time  of  the  late  troubles,  and  my  Brother  Wyld  told  me  that 
the  case  was  this :  That  thieves  came  with  intent  to  rob  him,  and  find- 
ing the  door  lockt  up,  pretending  they  came  to  speak  with  him,  and 
thereupon  a  maid  servant  opened  the  door,  and  they  came  in  and  rob- 


154  OFFENSES   AGAINST   THE    HABITATION 

bed  him,  and  this  being  in  the  nighttime  this  was  adjudged  burglary 
and  the  persons  hanged,  for  their  intention  being  to  rob,  and  getting 
the  door  open  by  a  false  pretense,  this  was  in  f raudem  legis,  and  so 
they  were  guilty  of  burglary,  though  they  did  not  actually  break  the 
house,  for  this  was  in  law  an  actual  breaking,  being  obtained  by  fraud 
to  have  the  door  opened,  as  if  men  pretend  a  warrant  to  a  constable, 
and  bring  him  along  with  them,  and  under  that  pretense  rob  the  house, 
if  it  be  in  the  night,  this  is  burglary. 


STATE  V.  CRAWFORD. 

(Supi-eme  Court  of  North  Dakota,  1899.    8  N.  D.  539,  80  N.  W.  193,  46  L.  R.  A, 

312,  73  Am.  St.  Rep.  772.) 

John  Crawford  was  indicted  for  burglary  in  the  third  degree  and 
acquitted  by  direction  of  the  court,  and  the  state  appeals. 

Wallin,  j,4  *  *  *  There  is  no  conflict  of  evidence  in  the  case, 
nor  is  there  any  dispute  between  counsel  as  to  the  facts.  The  evidence 
shows  that  at  the  time  and  place  stated  in  the  information  there  was 
a  certain  building  used  as  a  granary,  in  which  there  was  stored  in  bins 
about  800  bushels  of  wheat,  and  that  in  the  nighttime  three  holes  were 
bored  with  a  two-inch  auger  through  the  walls  of  the  granary  and 
into  one  of  the  wheat  bins.  The  three  holes  were  so  connected  to- 
gether as  to  make  one  large  opening  through  the  walls,  and  into  the 
wheat  bin.  It  further  appears  that  there  was  a  depression  in  the 
mass  of  wheat  directly  over  the  aperture  made  by  the  auger,  indicat- 
ing that  wheat  had  passed  out  of  the  bin  through  such  aperture  to  the 
amount  of  several  bushels,  and,  further,  that  some  wheat  was  spilled 
on  the  ground  directly  under  the  opening  through  the  wall  of  the 
granary.  Other  evidence  tended  to  connect  the  defendant  with  the 
felonious  asportation  and  sale  of  the  grain.  Upon  this  evidence  the 
question  is  presented  whether  the  state  had  made  out  a  prima  facie 
case  when  the  evidence  closed  and  the  state  rested  its  case.     *     *     * 

Counsel  most  strenuously  contends  that  inasmuch  as  the  evidence 
shows  that  the  grain  was  removed  through  the  opening  made  with  an 
auger,  and  not  otherwise,  it  therefore  appears  affirmatively  that  the 
defendant  did  not  and  could  not  have  gone  into  the  building,  and 
hence  that  the  state  failed  to  establish  the  essential  element  of  an 
entry.  We  cannot  accept  this  conclusion  from  the  evidence.  It  is 
manifest  that  the  auger,  guided  by  the  person  who  bored  the  holes, 
passed  through  the  walls  of  the  granary  into  the  mass  of  wheat,  there- 
in, and  also  manifest  that  it  was  the  auger  operating  within  the  build- 
ing which  set  the  law  of  gravitation  in  motion,  and  thereby  enabled 

*  Part  of  the  opinion  is  omitted. 


BURGLARY  155 

the  man  guiding  the  auger  to  remove  the  property  from  within  the  build- 
ing to  the  outside.  Using  the  auger  for  the  double  purpose  of  break- 
ing and  taking  possession  of  the  property  within  the  building  brings 
the  case  within  the  rule  announced  in  the  authorities  hereafter  cit- 

/^/"l  'i*        't*        T* 

The  order  directing  an  acquittal  will  be  reversed  upon  the  ground 
that  it  was  error  to  hold  that  the  evidence  did  not  tend  to  establish  an 
entry.     *     *     * 


STATE  V.  MOORE. 

(Superior  Court  of  Judicature  of  New  Hampshire,  1S41.    12  N.  H.  42.) 

Indictment  for  breaking  and  entering  the  house  of  Isaac  Paddle- 
ford,  at  Lyman,  in  the  nighttime,  on  the  19th  day  of  November,  1840, 
with  intent  to  steal,  and  stealing  therefrom  certain  pieces  of  money. 

It  appeared  in  evidence  that  the  prisoner  went  to  the  house,  which 
is  a  public  house,  and  asked  for  and  obtained  lodging  for  the  night, 
and  that  he  took  the  money  from  a  box  in  the  desk  in  the  barroom  in 
the  course  of  the  night. 

The  jury  were  instructed  that  upon  this  indictment  the  prisoner 
might  be  convicted  of  burglary,  of  entering  in  the  nighttime  and  steal- 
ing, or  of  larceny ;  that  if  the  door  of  the  barroom  were  shut,  and  the 
prisoner  left  his  own  room  in  the  nighttime,  and  opened  the  door  of  the 
barroom,  or  any  other  door  in  his  way  thereto,  except  his  own  door, 
and  stole  the  money,  he  was  guilty  of  burglary ;  but  that  if  he  left 
his  own  room  in  the  night,  and  stole  the  money  from  the  barroom, 
without  opening  any  door  on  his  way  thereto,  except  his  own  door, 
he  was  guilty  of  entering  in  the  nighttime  and  stealing.  The  jury 
found  the   prisoner  guilty  of  entering  in   the   nighttime   and   steal- 

Gilchrist,  j,5  *  *  *  It  jg  said  that,  as  the  prisoner  was  law- 
fully in  the  house,  he  cannot  be  convicted  of  the  offense  of  entering  in 
the  nighttime  with  intent  to  steal.     *     *     * 

An  innkeeper,  holding  out  his  inn  "as  a  place  of  accommodation 
for  travelers,  cannot  prohibit  persons  who  come  under  that  character, 
in  a  proper  manner,  and  at  suitable  times,  from  entering,  so  long  as 
he  has  the  means  of  accommodation  for  them."  Markham  v.  Brown, 
8  N.  H.  528,  31  Am.  Dec.  209.  As  he  has  authority  to  enter  the  house, 
so  he  may  enter  any  of  the  common  public  rooms.  Markham  v. 
Brown.  The  barroom  of  an  inn  is,  from  universal  custom,  the  most 
public  room  in  the  house ;  and  whether  a  traveler  may,  without  per- 
mission, enter  any  of  the  private  rooms  or  not,  he  has  clearly  a  right 
to  enter  the  barroom.     *     *     * 

e  Tlie  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


156  OFFENSES   AGAINST   THE    HABITATION 

"It  is  not  a  burglarious  breaking  and  entry,  if  a  guest  at  an  inn 
open  his  own  chamber  door,  and  takes  and  carries  away  his  host's 
goods,  for  he  has  a  right  to  open  his  own  door,  and  so  not  a  bur- 
glarious breaking."    1  Hale,  P.  C.  553,  554. 

If  a  burglary  could  not  be  committed  because  the  party  had  a  right 
to  open  his  own  door,  notwithstanding  the  subsequent  larceny,  the 
same  principle  would  seem  to  be  applicable  here,  where  the  prisoner 
had  a  right  to  enter  the  house,  and  where,  by  parity  of  reasoning,  his 
subsequent  larceny  would  not  make  his  original  entry  unlawful. 

For  these  reasons,  the  judgment  of  the  court  is  that  the  verdict. be 
set  aside  and  a 

New  trial  granted. 


QUINN  V.  PEOPLE. 
(Court  of  Appeals  of  New  York,  1878.     71  N.  Y.  561,  27  Am.  Rep.  87.) 

FoLGER,  J.«  The  plaintiff  in  error  was  indicted  of  the  crime  of 
burglary  in  the  first  degree,  under  the  section  of  the  Revised  Stat- 
utes defining  that  crime.  2  Rev.  St.  (1st  Ed.)  p.  668,  pt.  4,  c.  1,  tit. 
3,  §  10,  subd.  1.  The  crime,  as  there  defined,  consists  in  breaking 
into  and  entering  in  the  nighttime,  in  the  manner  there  specified,  the 
dwelling  house  of  another,  in  which  there  is  at  the  time  some  human 
being,  with  the  intent  to  commit  some  crime  therein.  The  evidence 
given  upon  the  trial  showed  clearly  enough  the  breaking  and  enter- 
ing and  the  criminal  intent.  The  questions  mooted  in  this  court  are 
whether  it  is  legally  proper,  in  an  indictment  for  burglary  of  a  dwell- 
ing house,  to  aver  the  ownership  of  the  building  in  a  partnership,  and 
whether  the  proof  showed  that  the  room  entered  was  a  dwelling  house 
within  the  intent  of  the  statute.     *     *     * 

As  to  the  second  question :  It  is  needed  only  to  note  that  there  was 
an  internal  communication  between  the  two  stores,  in  the  lower  sto- 
ries of  the  buildings,  but  none  between  them  and  the  upper  rooms,  in 
which  one  of  the  partners  and  other  persons  lived.  The  room  into 
which  the  plaintiff  in  error  broke  was  used  for  business  purposes  only, 
but  it  was  within  the  same  four  outer  walls,  and  under  the  same  roof 
as  the  other  rooms  of  the  buildings.  To  pass  from  the  rooms  used 
for  business  purposes  to  the  rooms  used  for  living  in,  it  was  neces- 
sary to  go  out  of  doors  into  a  yard  fenced  in,  and  from  thence  up- 
stairs. The  unlawful  entering  of  the  plaintiff  in  error  was  into  one  of 
the  lower  rooms  used  for  trade,  and  into  that  only.  The  point  made 
is  that  as  there  was  no  internal  communication  from  that  room  to 
the  rooms  used  for  dwellings,  and  as  that  room  was  not  necessary 
for  the  dwelling  rooms,  there  was  not  a  breaking  into  a  dwelling  house. 


6  The  statement  of  facts  and  parts  of  tlie  opinion  are  omitted. 


BURGLARY  -  157 

and  hence  the  act  was  not  burglary  in  the  first  degree  as  defined  by  the 
Revised  Statutes  as  cited  above.  In  considering  this  point,  1  will  first 
say,  that  the  definition  of  the  crime  of  burglary  in  the  first  degree, 
given  by  the  Revised  Statutes,  does  not,  so  far  as  this  question  is 
concerned,  materially  diltcr  from  the  definition  of  the  crime  of  bur- 
glary as  given  at  common  law,  to  wit,  "a.  breaking  and  entering  the 
mansion  house  of  another  in  the  night,  with  intent  to  commit  some 
felony  within  the  same.  *  *  *  "  2  Russ.  on  Cr.  p.  1,  §  785.  It 
will,  therefore,  throw  light  upon  this  question  to  ascertain  what  build- 
ings or  rooms  were,  at  common  law,  held  to  be  dwelling  houses  or  a 
part  thereof,  so  as  to  be  the  subject  of  burglary;  for,  as  far  as  the  Re- 
vised Statutes  as  already  cited  are  concerned,  what  was  a  dwelling 
house  or  a  part  thereof  at  common  law  must  also  be  one  under  those 
statutes.  Now,  at  common  law,  before  the  adoption  of  the  Revised 
Statutes,  it  had  been  held  that  it  was  not  needful  that  there  should  be 
an  internal  communication  between  the  room  or  building  in  which  the 
owner  dwelt,  if  the  two  rooms  or  buildings  were  in  the  same  inclosure, 
and  were  built  close  to  and  adjoining  each  other.  Case  of  Gibson, 
Mutton  &  Wiggs,  Leach's  Cr.  Cas.  320  (Case  165),  recognized  in  Peo- 
ple v.  Parker,  4  Johns.  424.  In  the  case  from  Leach,  there  was  a  shop 
built  close  to  a  dwelling  house  in  which  the  prosecutor  resided.  There 
was  no  internal  communication  between  them.  No  person  slept  in 
the  shop.  ■  The  only  door  to  it  was  in  the  courtyard  before  the  house 
and  shop,  which  yard  was  inclosed  by  a  brick  wall,  including  them 
within  it,  with  a  gate  in  the  wall  serving  for  ingress  to  them.  The 
breaking  and  entering  was  into  the  shop.  Objection  was  taken  that  it 
could  not  be  considered  the  dwelling  house  of  the  prosecutor,  and  the 
case  was  reserved  for  the  consideration  of  the  twelve  judges.  They 
were  all  of  the  opinion  that  the  shop  was  to  be  considered  a  part  of  the 
dwelling  house,  being  within  the  same  building  and  the  same  roof, 
though  there  was  only  one  door  to  the  shop,  that  from  the  outside, 
and  that  the  prisoners  had  been  duly  convicted  of  burglary  in  a  dwell- 
ing house.  The  case  in  Johnson's  Reports,  supra,  is  also  significant, 
from  the  facts  relied  upon  there  to  distinguish  it  from  the  case  in 
Leach,  supra.  Those  facts  were  that  the  shop  entered,  in  which  no 
one  slept,  though  on  the  same  lot  with  the  dwelling  house,  was  20 
feet  from  it,  not  inclosed  by  the  same  fence,  nor  connected  by  a  fence, 
and  both  open  to  a  street.  The  court  said  that  they  were  not  with- 
in the  same  curtilage,  as  there  was  no  fence  or  yard  inclosing  both,  so 
as  to  bring  them  within  one  inclosure.  Therefore  the  case  was  with- 
in that  of  The  King  v.  Garland,  1  Leach,  Cr.  Cas.  130  (or  171),  Case  77. 
It  has  been  urged,  in  the  consideration  of  the  case  in  hand,  that 
though  the  common  law  did  go  farther  than  the  cases  above  cited, 
and  did  deem  all  outhouses,  when  they  were  within  the  same  inclosure 
as  the  dwelling  house,  a  part  of  it,  yet  that  they  must,  to  be  so  held, 
be  buildings  or  rooms  the  use  of  which  subserved  a  domestic  purpose, 


158  OFFENSES   AGAINST   THE   HABITATION 

and  were  thus  essential  or  convenient  for  the  enjoyment  of  the  dwell- 
ing house  as  such.  Gibson's  Case,  supra,  would  alone  dispose  of 
that.  The  building  there  entered  was  not  only  of  itself  a  shop  for 
trade,  but  it  was  in  the  use  and  occupation  of  a  person  other  than  the 
owner  of  the  dwelling  house.  The  books  have  many  cases  to  the 
same  end.  Rex  v.  Gibbons  &  Kew,  Russ.  &  Ry.  442,  the  case  of  a 
shop;  Robertson's  Case,  4  City  Hall  Rec.  63,  also  a  shop,  with  no 
internal  communications  with  the  dwelling  house;  Rex  v.  Stock  et 
al,  Russ.  &  Ry.  185,  a  counting  room  of  bankers ;  Ex  parte  Vincent, 
26  Ala.  145,  62  Am.  Dec.  714,  one  room  in  a  house  used  as  a  wareroom 
for  goods ;  Rex  v.  Witt,  Ry.  &  M.  248,  an  office  for  business,  below 
lodging  rooms.  Indeed,  the  essence  of  the  crime  of  burglary  at  com- 
mon law  is  the  midnight  terror  excited,  and  the  liability  created  by  it 
of  danger  to  human  life,  growing  out  of  the  attempt  to  defend  prop- 
erty from  depredation.  It  is  plain  that  both  of  these  may  arise  when 
the  place  entered  is  in  close  contiguity  with  the  place  of  the  owner's 
repose,  though  the  former  has  no  relation  to  the  latter  by  reason  of 
domestic  use  or  adaptation.  Besides,  the  cases  have  disregarded  the 
fact  of  domestic  use,  necessity,  or  convenience,  and  have  found  the 
criterion  in  the  physical  or  legal  severance  of  the  two  departments  or 
buildings.  Rex  v.  Jenkins,  Russ.  &  Ry.  244;  Rex  v.  Westwood,  Id. 
495,  where  the  separation  of  the  buildings  was  by  a  narrow  way,  both 
of  them  being  used  for  the  same  family  domestic  purposes. 

It  is  not  to  be  denied  that  there  are  some  cases  which  do  put  just 
the  difference  above  noted,  as  now  urged  for  the  plaintifif  in  error 
(State  v.  Langford,  12  N.  C.  253;  State  v.  Jenkins,  50  N.  C.  430; 
State  v.  Bryant  Ginns,  1  Nott  &  McC.  [S.  C]  583),  though,  in  the 
case  last  cited.  It  is  conceded  that  if  a  store  is  entered,  which  is  a 
part  of  a  dwelling  house,  by  being  under  the  same  roof,  the  crime  is 
committed;  and  it  must  be  so,  if  it  is  the  circumstance  of  midnight 
terror  in  breaking  open  a  dwelling  house  which  is  a  chief  ingredient  of 
the  crime  of  burglary,  and  it  is  for  that  reason  that  barns  and  other 
outhouses,  if  in  proximity  to  the  mansion  house,  are  deemed  quasi 
dwelling  houses,  and  entitled  to  the  same  protection  (State  v.  Brooks, 
4  Conn.  446-449).  Coke,  3  Inst.  64,  is  cited  to  show  that  only  those 
buildings  or  places  which  in  their  nature  and  recognized  use  are  in- 
tended for  the  domestic  comfort  and  convenience  of  the  owner  may  be 
the  subject  of  burglary  at  common  law;  but  in  the  same  book  and 
at  the  same  page  the  author  also  says :  ."But  a  shop  wherein  any  per- 
son doth  converse" — i.  e.,  be  employed  or  engaged  with;  Richard- 
son's Die.  "in  voce" — "being  a  parcel  of  a  mansion  house,  or  not  parcel, 
is  taken  for  a  mansion  house."  So  Hale  is  cited  (1  P.  C.  558) ;  and  it 
is  there  said  that  "to  this  day  it  is  holden  no  burglary  to  break  open 
such  a  shop."  But  what  does  he  mean  by  that  phrase  ?  That  appears 
from  the  authority  which  he  cites,  Hutton's  Reps.  S3,  where  it  was 
held  no  burglary  to  break  and  enter  a  shop,  held  by  one  as  a  tenant  in 


BURGLARY  15J> 

the  house  of  another,  in  which  the  tenant  worked  by  day,  but  neither 
he  nor  the  owner  slept  by  night.  And  the  reason  given  is  the  one 
above  noticed,  and  often  recognized  by  the  cases,  that  by  the  leasing 
there  was  a  severance  in  law  of  the  shop  from  the  dwellir.g  house. 
But  Hale  also  (1  P.  C.  557)  cites  as  law  the  passage  from  the  Institutes 
above  quoted.  Other  citations  from  text-books  are  made  by  the 
plaintiff  in  error.  They  will  be  found  to  the  same  effect,  and  subject 
to  the  same  distinction  as  those  from  Coke  and  Hale.  And  see  Rex  v. 
Gibbons  et  al.,  supra ;  Rex  v.  Richard  Carroll,  1  Leach,  Cr.  Cas.  272 
(Case  115). 

That  there  must  be  a  dwelling-  house,  to  which  the  shop,  room,  or 
other  place  entered  belongs  as  a  part,  admits  of  no  doubt.  To  this 
effect,  and  no  more,  are  the  cases  cited  by  the  plaintiff  in  error  of  Rex 
V.  Harris,  2  Leach,  Cr.  Cas.  701,  Rex  v.  Davies,  ahas  Silk,  Id.  876,  and 
the  like.  There  were  cases  which  went  further  than  anything  I  have 
asserted.  They  did  not  exact  that  the  building  entered  should  be  close 
to  or  adjoining  the  dwelling  house,  but  held  the  crime  committed  if 
the  building  entered  was  within  the  same  fence  or  inclosure  as  the 
huilding  slept  in.  And  the  dwelling  house  in  which  burglary  might  be 
committed  was  held  formerly  to  include  outhouses — such  as  ware- 
houses, barns,  stables,  cow  houses,  dairy  houses — though  not  under 
the  same  roof  or  joining  contiguous  to  the  house,  provided  they  were 
parcel  thereof.  1  Russ.  on  Cr.  *799,  and  authorities  cited.  Any  out- 
house within  the  curtilage  or  same  common  fence  with  the  dwelling 
house  itself  was  considered  to  be  parcel  of  it,  on  the  ground  that  the 
capital  house  protected  and  privileged  all  its  branches  and  appurte- 
nants, if  within  the  curtilage  or  homestall.  State  v.  Twitty,  2  N.  C. 
102 ;  State  v.  Wilson,  Id.  242.  See,  also.  State  v.  Ginns,  1  Nott  & 
McC.  (S.  C.)  585,  where  this  is  conceded  to  be  the  common  law. 
See  note  "a"  to  Garland's  Case,  supra. 

It  seems  clear  that  at  common  law  the  shop  which  the  plaintiff  in 
error  broke  into  would  have  been  held  a  part  of  a  dwelling 
house.     *     *     * 

I  am  brought  to  the  conclusion  that  upon  the  facts  proven  the  plain- 
tiff in  error  was  properly  indicted  and  convicted  of  the  statutory  crime 
of  burglary  in  the  first  degree.     *     *     * 

Allen,  Miller,  and  Earl,  JJ.,>  concur.  Rapallo  and  Andrews, 
JJ.,  dissent.    Church,  C.  J.,  not  voting. 

Judgment  affirmed. 


160,  OFFENSES  AGAINST  PKOPEKTT 


OFFENSES  AGAINST  PROPERTY 
I.  Larceny  * 

1.  Prope;rty  That  May  be;  Stole^n 


HAYWOOD  V.  STATE. 
(Supreme  Court  of  Arkansas,  1SS3.    41  Ark.  479.) 

EngIvISH,  C.  J.^  Horace  Haywood  was  indicted  in  the  Circuit  Court 
of  Sebastian  County,  Ft.  Smith  District,  for  larceny.  There  were 
three  counts  in  the  indictment.  The  first  count  charged,  in  substance, 
that  said  Horace  Haywood,  on  the  twenty-ninth  of  April,  1883,  at, 
etc.,  one  reclaimed  and  tame  mocking-bird,  of  the  value  of  twenty- 
five  dollars,  and  one  bird  cage  of  the  value  of  one  dollar,  of  the  prop- 
erty, goods  and  chattels  of  Ellen  Lane,  etc.,  did  steal,  take,  and 
carry  away,  etc.     *     *     * 

Larceny,  at  common  law,  is  defined  to  be  "the  felonious  taking  and 
carrying  away  of  the  personal  goods  of  another."     Blackstone. 

By  the  common  law  there  can  be  no  larceny  of  animals  ferai  nat- 
urae, or  wild  animals,  unreclaimed.  When  reclaimed  they  become 
the  subject  of  this  offense,  provided  they  are  fit  for  food,  not  other- 
wise. 

But  the  English  courts  made  exceptions  to  the  rule,  that  reclaimed 
animals,  to  be  the  subject  of  larceny,  must  be  fit  for  food.  Thus  the 
tamed  hawk  was  held  to  be  the  subject  of  "larceny,  though  unfit  for 
food,  because  it  served  to  amuse  the  English  gentlemen  in  their  fowl- 
ing sports.  So  reclaimed  honey  bees  were  made  an  exception,  be- 
cause, though  not  fit  for  food  themselves,  their  honey  is. 

Under  decisions  of  English  and  American  courts,  made  upon  the 
common  law  definition  of  larceny,  Mr.  Bishop  classes  the  following 
animals,  when  reclaimed,  as  the  subjects  of  the  offense:  Pigeons, 
doves,  hares,  conies,  deer,  swans,  wild  boars,  cranes,  pheasants,  par- 
tridges and  fish  suitable  for  food,  including  oysters. 

To  which  might  be  safely  added  wild  turkeys,  geese,  ducks,  etc., 
when  reclaimed. 

Of  those  animals  which  there  can  be  no  larceny,  though  reclaimed, 
he  puts  down  the  following :    Dogs,  cats,  bears,  foxes,  apes,  monkeys, 

1  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (Sd  Ed.)  §§ 
94-98. 

2  The  statement  of  facts  is  abridged. 


LARCENY  ICl 

polecats,  ferrets,  squirrels,  parrots,  sinewing  birds,  martins  and  coons. 

In  the  South,  squirrels  are  in  common  use  as  food  animals,  and 
the  hunters  of  all  climates  regard  bears  as  good  food. 

Iowa  is  credited  with  the  decision,  Warren  v.  State,  1  G.  Greene 
(Iowa)  106,  that  coons  are  unfit  for  food,  and  therefore,  by  the  com- 
mon law,  not  the  subject  of  larceny,  when  reclaimed. 

Among  the  colored  people  of  the  South  the  coon,  when  fat  in  the 
fall  and  winter,  is  regarded  as  a  luxury,  and  the  Iowa  decision  would 
not  be  regarded  by  them  as  sound  law  or  good  taste. 

On  the  whole  subject,  see  2  Bishop  on  Criminal  Law  (6th  Ed.)  §§ 
757,  781,  and  notes. 

Every  species  of  personal  property  was  not  the  subject  of  larceny 
at  common  law.  For  example,  dogs  were  treated  as  personal  property, 
and  on  the  death  of  their  owner,  if  not  disposed  of  by  will,  went  to 
his  executor  or  administrator  as  such.  So  the  owner  of  a  dog  could 
bring  a  civil  action  against  one  who  injured  or  took  the  animal. 
•  So  choses  in  action,  as  bonds,  bills,  notes,  etc.,  were  classed  as  per- 
sonal property,  and  subjects  of  the  action  of  detinue,  etc.,  but  larceny 
could  not  be  committed  of  them. 

Under  the  technical  rules  of  the  ancient  common  law,  says  Mr. 
Bishop,  prevailing  still,  except  as  expanded  by  statutes,  larceny  was 
restricted  as  to  the  property  of  wdiich  it  could  be  committed,  as  well 
as  in  some  other  respects,  within  limits  too  narrow  to  meet  the  re- 
quirements of  a  more  refined  and  commercial  age.  Consequently  stat- 
utes in  England  and  in  the  United  States  have  greatly  enlarged  the 
common  law  doctrine.    Id.  §  761. 

The  provisions  of  the  larceny  statute  of  this  State  are  very  broad 
and  comprehensive.  The  first  section  defines  the  crime  thus :  "Lar- 
ceny is  the  felonious  stealing,  taking  and  carrying,  riding,  or  driving 
away  the  personal  property  of  another."  This  perhaps  is  not  more 
comprehensive  than  the  common  law  definition. 

The  second  section  declares  that  "larceny  shall  embrace  every  theft 
which  unlawfully  deprives  another  of  his  money  or  other  personal 
property,  or  those  means  and  muniments  by  which  the  right  and  title 
to  property,  real  or  personal,  may  be  ascertained." 

The  third  section  makes  any  bank  note,  bond,  bill,  note,  receipt, 
or  any  instrument  of  writing  whatever,  of  value  to  the  owner,  the 
subject  of  larceny. 

The  fourth  section  declares  that  "the  taking  and  removing  away 
any  goods  or  personal  chattels  of  any  kind  whatever,  with  intent  to 
steal  the  same,  whether  the  articles  stolen  be  in  the  immediate  posses- 
sion of  the  owner  or  not,  unless  it  shall  appear  that  the  owner  has 
abandoned  his  claim  thereto,  shall  be  deemed  larceny."  Gantt's  Di- 
gest, §§  1352-1357. 

Under  similar  statutes  of  New  York  and  Tennessee,  it  has  been 
decided  that  dogs  are  the  subject  of  larceny.     Mullaly  v.  People,  86 
MiKELL  Cas.Cb.L. — 11 


162  OFFENSES    AGAINST   PROPERTY 

N.  Y.  365;  State  v.  Brown,  9  Baxt.  (Tenn.)  53,  40  Am.  Rep.  81. 
Though  in  the  States  where  the  common  law  has  not  been  enlarged  by 
statute,  the  rulings  have  been  otherwise. 

In  Mullaly  v.  People,  it  was  well  said  by  Justice  Earle,  who  deliv- 
ered the  opinion  of  the  Court,  that  "in  nearly  every  household  in  the 
land  can  be  found  chattels  kept  for  the  mere  whim  and  pleasure  of  its 
owner;  a  source  of  solace  after  serious  labor,  exercising  a  refining  and 
elevating  influence ;  and  yet  they  are  as  much  under  the  protection  of 
the  law  as  chattels  purely  useful  and  absolutely  essential." 

The  reclaimed  mocking  bird  in  question  was  no  doubt  personal 
property.  The  owner  could  have  brought  trespass  agaii;st  the  thief, 
who  invaded  her  portico  at  night,  and  deprived  her  of  the  possession 
of  her  songster,  which  she  prized  above  price,  and  she  could  have 
maintained  replevin  against  the  person  to  whom  he  sold  it,  had  he 
refused  to  surrender  it  to  her. 

The  market  value  of  the  bird  was,  perhaps,  more  than  ten  times 
greater  than  that  of  the  cage,  which  was  the  subject  of  petit  larceny. 
To  hold  that  larceny  might  be  committed  of  the  cage,  but  not  of  the 
bird,  would  be  neither  good  law  nor  common  sense. 

Affirmed. 


COMMONWEALTH  v.  STEIMLING. 

(Supreme  Court  of  Pennsylvania,  1893.     156  Pa.  400,  27  All.  297.) 

Mr.  Justice  Williams.^  *  *  *  j^  appeared  on  the  trial  that 
Bower,  the  prosecutor,  was  the  owner  of  a  farm  which  was  crossed  by 
Mahanoy  creek.  Some  distance  up  the  stream  coal  mines  were  in 
operation  and  had  been  for  many  years.  The  culm  and  waste  from 
the  mines  and  breaker,  which  had  been  thrown  into,  or  piled  upon  tlie 
bank,  of  the  creek,  had  been  carried  down  the  stream  by  the  current 
and  the  floods,  and  deposited  in  the  channel  and  along  the  shores  in 
considerable  quantities.  This  material,  having  been  abandoned  by  its 
original  owners,  belonged  to  him  on  whose  land  the  water  left  it.  The 
water,  dropping  the  heavy  pieces  first  and  carrying  the  smaller  parti- 
cles and  dust  along  in  the  current,  served  as  a  screen ;  and  as  the  result 
of  this  process  considerable  quantities  of  coal  suitable  for  burning  were 
lodged  along  the  channel  and  the  banks  of  the  stream  throughout  its 
course  over  the  prosecutor's  farm.  The  defendant,  descending  the- 
stream  with  a  flatboat,  entered  upon  the  lands  of  Bower  and  began  to 
gather  coal  from  the  surface.  He  was  provided  with  a  scoop  or  shovel 
made  of  strong  wire  or  iron  rods,  with  which  he  gathered  up  the  coal. 
The  sand  and  gravel  passed  through  the  meshes  of  the  scoop,  leaving 

3  The  trial  court's  charge  to  the  jury  and  a  part  of  the  opinion  of  Wil- 
liams, J.,  are  omitted. 


LARCENY  1G3 

the  pieces  of  coal  within  it.  When  the  gravel  was  all  sifted  out,  the 
cleaned  coal  was  emptied  upon  the  flatboat.  This  process  was  con- 
tinued until  a  boat  load  was  obtained.  The  boat  was  then  towed  or 
pushed  to  some  bins  on  the  shore  opposite  to  Bower's  house,  and  the 
coal  was  transferred  from  the  boat  to  the  bins.  This  was  repeated 
until  from  8  to  12  tons  of  coal  had  been  gathered,  cleaned,  deposited  on 
the  boat,  transported  to  the  bins,  and  unloaded.  This  coal  was  after- 
wards delivered  to  purchasers,  or  taken  for  consumption,  from  the 
bins. 

Here  was  a  taking  with  intent  to  carry  away  and  convert,  a  carry- 
ing away,  and  an  actual  conversion,  which  the  commonwealth  held 
sustained  the  indictment  for  larceny.  The  learned  judge,  however, 
instructed  the  jury  that  the  process  of  collecting,  cleaning,  loading 
upon  the  flatboat,  transporting  to  the  bins,  and  unloading  the  coal 
into  them  must  be  regarded  as  one  continuous  act,  like  the  act  of 
him  who  tears  a  piece  of  lead  from  a  building  and  carries  it  off,  or 
who,  passing  an  orchard,  plucks  fruit  and  takes  it  away,  and  that 
the  defendant  was,  therefore,  a  trespasser  only.  The  distinction  in 
the  mind  of  the  learned  judge  was  that  between  real  and  personal 
estate.  The  coal  lying  upon  the  surface  he  held  to  be  real  estate. 
The  lifting  it  up  in  the  shovel  was  on  this  theory  a  severance,  which 
forcibly  changed  its  character  and  made  it  personal.  The  loading 
into  the  flatboat,  the  transportation  to  the  bins,  and  unloading  of  the 
boat,  all  of  which  acts  were  done  within  the  lines  of  the  prosecutor's 
land,  and  occupied  hours  of  time  for  each  boat  load,  were  so  con- 
nected with  the  severance  as  to  make  but  a  single  act.  For  this  rea- 
son he  held  that  the  defendant  was  guilty  of  a  trespass  only.  The 
common  law  did  distinguish  between  things  that  are  connected  with 
or  savor  of  the  real  estate  and  those  that  are  personal  goods.  An 
apple  growing  upon  a  tree  was  connected  with  the  land  by  means  of 
the  tree  that  bore  it,  and  so  held  to  partake  of  the  nature  of  the 
land,  and  to  be  real  estate.  One  who  plucked  it  from  the  tree,  and 
at  once  ate  or  carried  it  away,  was  therefore  a  trespasser;  but  if 
he  laid  it  down,  and  afterwards  carried  it  away,  so  that  the  taking  and 
the  asportation  were  not  one  and  the  same  act,  then,  if  the  carrying 
away  was  done  animo  furandi,  the  elements  of  larceny  were  present. 

Blackstone  tells  us,  in  volume  4,  p.  233,  of  the  Commentaries,  that 
larceny  cannot  be  committed  of  things  that  savor  of  the  realty,  be- 
cause of  "a  subtility  in  the  legal  notions  of  our  ancestors."  He  then 
explains  the  subtile  distinction  as  follows :  "These  things  (things 
that  savor  of  the  realty)  were  parcel  of  the  real  estate,  and  therefore, 
while  they  continued  so,  could  not  by  any  possibility  be  the  sub- 
ject of  theft,  being  absolutely  fixed  and  immovable.  -  And  if  they 
were  severed  by  violence,  so  as  to  be  changed  into  movables,  and  at 
the  same  time,  by  one  and  the  same  continued  act,  carried  off  by 
the  person  who  severed  them,  they  could  never  be  said  to  be  taken 


1G4  OFFENSES  AGAINST  PKOPEETT 

from  their  proprietor  in  their  newly  acquired  state  of  mobility."  But 
he  explains  that,  if  the  act  of  severance  and  that  of  carrying  away 
be  separated,  so  that  they  do  not  constitute  "one  and  the  same  con- 
tinued act,"  the  subtile  distinction  between  personal  goods  and  those 
that  savor  of  the  real  estate  ceases  to  protect  the  wrongdoer  from  a 
criminal  prosecution,  and  a  charge  of  larceny  can  be  sustained.  The 
question  whether  this  coal,  lying  loose  upon  the  surface,  like  other 
drift  of  the  stream,  was  real  or  personal  estate,  does  not  seem  to  have 
been  raised  in  the  court  below,  and  it  is  not  before  us. 

The  real  question  presented  is  whether  this  case  upon  its  facts  is 
one  for  the  application  of  the  common-law  rule.  Have  we  here  a 
severance  and  an  asportation  that  constitute  "one  and  the  same  con- 
tinuous act?"  If  the  picking  of  the  coal  from  the  surface  be  treated 
as  an  act  of  severance,  we  have  next  the  act  of  cleaning"  and  sifting, 
then  the  deposit  of  the  cleaned  coal  upon  the  flatboat  little  by  little, 
then  the  transportation  of  the  boat  load  to  tlie  bins,  and  then  the 
process  of  shoveling  the  coal  from  the  boat  into  the  bins. 

The  acts,  occupying  considerable  time  for  each  boat  load,  were 
all  done  within  the  inclosures  of  the  prosecutor.  It  is  as  though  one 
should  come  with  team  and  farm  wagon  into  his  neighbor's  corn 
field  and  pluck  the  ears,  load  them  into  the  wagon,  and,  when  the 
wagon  would  hold  no  more,  draw  the  corn  away  to  his  own  corn 
house,  and  then  return  again,  and  continue  the  process  of  harvesting 
in  the  same  manner  until  he  had  transferred  his  neighbor's  crop  to 
his  own  cribs.  If  such  acts  were  done  under  a  bona  fide  claim  of 
title  to  the  crop,  they  would  not  amount  to  larceny ;  but,  if  done  animo 
furandi,  all  the  elements  of  larceny  would  be  present.  In  the  case 
before  us  it  is  conceded  that  the  coal  belonged  to  Bower,  and  was  in 
his  possession  as  part  of  his  real  estate.  The  defendant  entered 
his  lands  for  the  purpose  of  collecting  coal  and  carrying  it  away. 
He  makes  no  bona  fide  claim  of  title,  no  offer  to  purchase,  sets  up 
no  license,  but  rests  on  the  proposition  that,  like  the  man  who  plucks 
an  apple  from  a  tree  and  goes  his  way,  he  is  liable  only  as  a  tres- 
passer. If  this  be  true,  he  could  gather  the  coal  from  Bower's  land 
as  often  as  the  stream  made  a  sufficient  deposit  to  justify  the  ex- 
penditure of  time  necessary  to  gather,  clean,  transport,  and  put  it  in 
bins.  Upon  the  same  principle  he  might  gather  all  the  crops  grow- 
ing on  Bower's  farm  as  they  matured,  and  by  hauling  each  load  away 
when  it  was  made  up,  defend  against  the  charge  of  larceny,  on  the 
ground  that  the  gathering  from  the  tree,  the  stalk,  or  the  hill,  the 
loading  into  wagons,  and  the  carrying  of  the  loads  away,  though  oc- 
cupying hours  for  each  load  and  many  days  for  the  crop,  was  "one 
and  the  same  continuous  act"  of  trespass.  We  cannot  agree  to  such 
an  extension  of  the  common-law  rule,  but  are  of  the  opinion  that  this 
case  should  have  gone  to  the  jury  on  the  existence  of  the  animo 
furandi. 


LAKCENT  165. 


2.  Tnr;  Trespass  in  Taking 
(A)  Larceny  by  Bailee 


REX  V.  SEMPLE. 
(Old  Bailey,  17S6.    1  Leach  [4th  Ed.]  420.) 

At  the  ensuing  session  the  prisoner,  J.  G.  Semple,  was  again  in- 
dicted for  the  same  offense  [larceny],  before  Adair,  Recorder;  pres- 
ent, Mr.  Justice  Gould. 

The  following  facts  appeared  in  evidence :  The  prosecutor,  Mr.  Ly- 
cett,  was  a  coachmaker,  who  let  out  carriages  to  hire.  The  prisoner 
was  a  gentleman  who  lodged  in  the  neighborhood  under  the  name  of 
Maj.  Harrold,  and  had  frequently  hired  chaises  from  the  prosecutor 
as  the  occasion  required,  and  for  which  he  had  always  paid  with  great 
punctuality.  On  the  1st  of  September,  1785,  the  prisoner  hired  a  post 
chaise  of  the  prosecutor,  saying  that  he  should  want  it  for  three  weeks 
or  a  month,  as  he  was  going  a  tour  round  the  North.  It  was  agreed 
that  the  prisoner  should  pay  at  the  rate  of  five  shilhngs  a  day  during 
the  time  that  he  kept  the  chaise,  and  a  price  of  fifty  guineas  was  talked 
about  in  case  he  should  determine  to  purchase  the  chaise  on  his  return 
to  London ;  but  no  positive  agreement  took  place  between  them  on  the 
subject  of  the  purchase.  In  a  few  days  afterwards  the  prisoner 
fetched  the  chaise  from  Mr.  Lycett's  with  his  own  horses ;  and  it  was 
in  evidence  that  he  was  driven  in  it  from  London  to  the  Crown  and 
Cushion  at  Uxbridge,  where  he  ordered  a  pair  of  horses,  and  went 
from  thence  to  the  Duke  of  Portland's,  and  returned.  He  took  fresh 
horses  at  the  Crown  and  Cushion,  but  where  he  went  with  the  chaise 
afterwards  did  not  appear.  The  fact  was  he  never  returned  it  to  Mr. 
Lycett,  nor  could  any  tidings  be  obtained  of  him  till  twelve  months 
afterwards,  when  he  was  accidentally  apprehended  by  the  activity  of 
Mr.  Feltham,  in  Fleet  street,  upon  a  suspicion  of  having,  under  false 
pretenses,  defrauded  him  of  a  quantity  of  ladies'  hats. 

Garrow,  for  the  prisoner,  submitted  to  the  court  that,  admitting  the 
whole  of  the  evidence  to  be  true,  the  offense  did  not  amount  to  felony, 
and  he  endeavored  to  distinguish  the  case  from  that  of  Pear's  Case,  1 
Leach,  212,  and  Aickle's  Case,  1  Leach,  294,  inasmuch  as  in  those 
cases  the  parties  had  never  obtained  the  legal  possession  of  the  prop- 
erty delivered  to  them,  but  that  in  the  present  case  the  prisoner  had 
obtained  the  chaise  upon  a  contract,  which  it  was  not  proved  that  he 
had  broken ;  for  the  chaise  was  not  hired  for  any  definite  length  of 
time,  or  to  go  to  any  certain  place,  and  the  mere  understanding  that 


166  OFFENSES   AGAINST    PEOPERTY 

it  was  for  three  weeks  or  a  month,  for  the  purpose  of  making  a  tour 
round  the  North,  made  no  part  of  the  contract.  He  had  hired  it  for 
such  a  length  of  time  as  he  should  please  to  keep  it,  at  a  certain  stipu- 
lated price  for  each  day;  and,  it  being  delivered  to  him  upon  those 
terms,  he  had  the  entire  possession  of  it  in  himself,  and  was  answer- 
able in  damages  for  its  detention,  or  for  any  injury  which  might  hap- 
pen to  it  during  his  absence.  But,  supposing  the  contract  should  be 
thought  not  to  extend  beyond  the  three  weeks  or  a  month ;  it  is  clear 
that  during  that  time  he  had  at  least  the  legal  possession,  and  then  no 
intention  to  convert  it  wrongfully  to  his  own  use,  arising  afterward, 
whether  from  necessity  or  dishonesty,  will  make  the  withholding  it 
felony,  for  the  animus  furandi  must  exist  at  the  time  the  property  is 
obtained.  In  all  the  leading  cases  upon  this  subject  of  constructive 
felony,  there  has  always  been  some  evidence  of  a  tortious  conversion ; 
but  in  this  case  it  has  not  been  proved  that  the  prisoner  has  disposed 
of  the  chaise.  It  may  be  at  this  very  moment  in  his  possession,  for 
anything  that  appears  to  the  contrary,  and  a  conversion  cannot  be  in- 
ferred from  his  having  neglected  to  return  it. 

The)  Court.  The  court  is  bound  by  the  determination  of  former 
cases.  It  is  now  settled  that  the  question  of  intention  is  for  the  con- 
sideration of  the  jury;  and  in  the  present  case,  if  they  should  be  of 
opinion  that  the  original  hiring  of  the  chaise  was  felonious,  it  will  fall 
precisely  within  the  principle  of  Pear's  Case  and  the  other  decisions 
which  the  judges  have  made  upon  the  subject  of  constructive  felony. 
If  there  was  a  bona  fide  hiring  of  the  chaise,  to  pay  so  much  for  every 
day  for  the  use  of  it,  and  a  real  intention  of  returning  it,  a  subsequent 
conversion  of  it  cannot  be  felony,  whether  the  time  for  which  it  was 
hired  be  limited  or  indefinite ;  for  by  the  bona  fide  contract,  and  sub- 
sequent delivery,  the  prisoner  would  have  acquired  the  lawful  pos- 
session of  it,  and  therefore,  although  he  afterwards  abused  that  trust 
and  that  possession,  felony  could  not  ensue,  because  the  original  tak- 
ing was  lawful.  But,  on  the  other  hand,  if  the  hiring  was  only  a  pre- 
tense made  use  of  to  get  the  chaise  out  of  the  possession  of  the  owner, 
without  any  intention  to  restore  it  or  to  pay  for  it,  in  that  case  the  law 
supposes  the  possession  still  to  reside  with  the  owner,  though  the  prop- 
erty itself  is  gone  out  of  his  hands,  and  then  the  subsequent  conver- 
sion will  be  felony.  The  case  of  The  King  v.  Pear  was  very  sol- 
emnly debated  at  Lord  Chief  Justice  De  Grey's  house;  and  the  unani- 
mous opinion  of  the  judges  was  at  last  that  the  direction  given  to  the 
jury  by  the  learned  judge  who  tried  the  prisoner  was  right.  The  most 
important  part  of  the  argument  turned  upon  the  consideration  wheth- 
er the  delivery  of  the  horse  to  Pear  had  in  law  divested  the  owner  ei- 
ther of  his  property  or  the  possession  of  it.  The  question  left  with 
the  jury  was  whether  the  contract  was  meant  fairly,  or  whether  it  was 
a  mere  color  and  pretense.  The  jury  found  that  it  was  a  mere  color 
and  pretense,  and  upon  that  finding  the  judges  determined  the  taking 


LARCENY  107 

to  be  felony,  because  it  is  an  established  principle  of  law  that  the  pos- 
session of  property  cannot  be  obtained  through  the  medium  of  a  fraud. 
But  it  has  been  attempted  to  distinguish  the  present  case  from  The 
King  V.  Pear :  First,  that  the  hiring  in  this  case  was  indefinite,  but  that 
in  The  King  v.  Pear  it  was  certain  and  limited.  The  time  cannot  be 
material  in  questions  of  this  nature.  Pear  hired  the  horse  in  the  morn- 
ing, under  the  pretense  of  going  to  Sutton,  in  Surrey,  and  to  return 
in  the  evening;  but,  as  the  hiring  was  found  to  be  felonious,  the  law 
of  the  case  must  have  been  the  same,  although  it  had  appeared  that 
the  hiring  was  for  two  days,  a  week,  a  month,  or  any  other  given  time 
— nay,  if  the  time  had  been  left  entirely  unlimited.  The  circumstances 
of  the  time  being  long  or  unsettled  may,  indeed,  render  the  proof  of 
guilt  more  difficult,  but  cannot  alter  the  law  of  the  case.  Secondly, 
it  is  said  that  this  case  differs  from  The  King  v.  Pear,  because  it  was 
proved  that  Pear  had  sold  the  horse,  and  therefore  had  converted  it 
to  his  own  use,  but  that  in  the  present  case  no  proof  has  been  given 
that  the  prisoner  has  sold  or  otherwise  converted  the  chaise.  Proof 
of  actual  conversion  certainly  is  not  necessary,  but  the  jury  must  judge 
of  it  from  the  circumstances  of  the  case.  If  the  prisoner,  at  any  time 
before  the  prosecution  was  commenced,  had  offered  to  restore  the 
chaise  to  the  owner,  or  to  pay  him  for  it,  such  conduct  would  have 
been  evidence  of  an  honest  intention  when  he  originally  hired  it,  and 
would  have  reprobated  the  idea  of  a  fraudulent  design.  But  he  hires 
the  chaise  for  a  month,  and  a  year  passes,  and  neither  the  chaise  nor 
the  man  are  heard  of  until  he  is  taken.  There  is  no  evidence  even  at 
this  moment  that  the  chaise  is  forthcoming,  nor  does  any  one  pretend 
to  know  where  it  is.  This,  therefore,  raises  a  presumption  against  the 
prisoner,  which  it  is  incumbent  on  him  to  repel ;  and,  if  he  cannot, 
it  will  be  for  the  consideration  of  the  jury,  under  all  the  circumstances 
of  the  case,  whether  they  think  he  has  feloniously  disposed  of  it,  or 
otherwise  converted  it  to  his  own  use.  In  their  determination  of  this 
point  they  must  recur  to  the  time  of  the  original  hiring,  and  to  the 
nature  and  meaning  of  the  contract  then  made  between  the  parties. 
If  they  think  the  redelivery  of  the  chaise  formed  any  part  of  the  con- 
tract, the  nondelivery  of  it  must  necessarily  form  a  part  of  their  con- 
sideration. They  will  then  consider  whether  the  nondelivery  is  suffi- 
cient evidence  to  satisfy  their  consciences  that  he  has  converted  it  to 
his  own  use.  These  two  considerations  will  naturally  lead  to  a  third, 
viz.,  whether  the  property  thus  converted  was  originally  obtained  with 
a  felonious  design,  which  will  carry  them  back  to  the  instant  of  time 
that  he  obtained  possession  of  it;  and,  if  they  should  find  the  original 
hiring  was  felonious,  the  most  ingenious  subtlety  cannot  distin'^uish 
this  case  from  that  of  The  King  v.  Pear.  There  is  a  case  in  Kelynge 
of  a  person  who  took  a  lodging  in  a  house,  and  afterwards  at  night, 
while  the  people  were  at  prayers,  robbed  them.  The  jury  found  that 
the  intention  of  taking  the  lodging  was  to  commit  the  felony,  and  the 


168  OFFENSES   AGAINST   PROPERTY 

judges  determined  that  this  was  burglary.  There  was  also  a  case  deter- 
mined very  lately  by  the  judges.  A  man  ordered  a  pair  of  candle- 
sticks from  a  silversmith  to  be  sent  to  his  lodgings.  They  were  sent 
to  his  lodgings,  with  a  bill  of  parcels;  but  he  contrived  to  send  the 
servant  back,  and  to  keep  the  goods,  and  this  was  held  to  be  felony, 
although  they  were  delivered  with  the  bill  of  parcels,  under  an  expec- 
tation of  being  paid  the  money,  for  the  jury  found  that  it  was  si  pre- 
tense to  purchase,  with  intention  to  steal. 

The  question  of  original  intention  was  left  with  the  jury,  and  they 
found  the  prisoner  guilty.  A  motion  was  made  in  arrest  of  judgment, 
but  it  was  overruled,  and  he  received  sentence  of  transportation  for 
seven  years. 


(B)  Custody  Not  Possession 


PEOPLE  V.  MONTARIAU 

(Supreme  Court  of  California,  1898.     120  Cal.  691,  53  Pac.  355.) 

Louis  Montarial  was  convicted  of  grand  larceny  in  stealing  certain 
moneys  from  one  Paillac,  and  appeals.  The  evidence  showed  that 
Montarial  and  Paillac  were  roommates,  and  that  the  latter  gave  the 
defendant  the  money  in  question,  done  up  in  a  package,  to  be  placed 
for  safe-keeping  in  defendant's  trunk.  Defendant  placed  the  money 
in  the  trunk,  where  it  remained  for  over  two  years.  Defendant  carried 
the  key,  but  always  unlocked  the  trunk  at  the  request  of  Paillac.  De- 
fendant had  no  authority  to  handle  the  package  except  in  the  presence 
of  Paillac,  and  then  only  for  the  purpose  of  handing  it  to  Paillac  or 
replacing  it  at  his  direction. 

Van  Fleet,  J.*  *  *  *  Taking  the  whole  evidence  together, 
with  all  it  tends  to  show,  and  we  are  satisfied  that  it  does  not  estab- 
lish a  bailment  or  intrusting  of  the  money  to  defendant.  As  we  regard 
it,  the  evidence  does  not  show  that  Paillac  ever  in  fact  really  parted 
with  the  possession  of  his  money.  While  it  was  locked  in  the  trunks  of 
defendant,  to  which  the  latter  retained  the  keys,  the  trunks  were  at 
all  times  as  much  in  the  possession  of  Paillac,  and  with  practically  the 
same  freedom  of  access  to  the  latter,  as  in  that  of  the  defendant.  In 
legal  contemplation  the  use  of  the  trunks  was  loaned  or  given  to  Pail- 
lac as  a  place  for  keeping  his  money.  The  mere  fact  that  defendant 
carried  the  keys  is  not  a  material  consideration.    As  we  have  seen,  the 

4  The  statement  of  facts  is  abridged  from  the  opinion  of  the  court,  and 
part  of  the  opinion  is  omitted. 


LARCENY 


169 


keys  were  always  forthcoming  when  demanded  by  Paillac  for  access 
to  his  money ;  and  the  money  was,  therefore,  to  all  practical  intents 
and  purposes,  as  much  under  his  personal  supervision  and  protection 
as  of  defendant.  Indeed,  more  so,  since  the  latter  had  no  right  or  au- 
thority to  tamper  with  it  in  any  way,  except  as  directed  by  its  owner. 

Much  is  made  by  defendant  of  the  fact  that  Paillac  testified  that  he 
"intrusted"  the  money  to  defendant ;  and  it  is  urged  that  this  consti- 
tutes embezzlement,  because  that  offense  consists  of  "the  fraudulent 
appropriation  of  property  by  a  person  to  whom  it  has  been  intrusted." 
Pen.  Code,  §  503.  But,  to  reach  the  meaning  of  the  witness,  his  ex- 
pressions must  be  read  in  the  light  of  his  whole  testimony  and  all  the 
circumstances ;  and  when  so  read  it  is  clear  that  his  money  was  not 
intrusted  to  the  keeping  of  the  defendant  in  a  manner  to  bring  it  within 
the  definition  of  embezzlement.  Defendant  let  Paillac  have  the  use  of 
his  trunks  as  a  place  of  safety  for  his  property,  and  the  only  dominion 
defendant  rightfully  exercised  over  it  was  a  perfunctory  handling  of 
it  in  the  presence  of  the  owner.  The  case,  although  differing  in  its 
circumstances,  is  not  to  be  distinguished  in  principle  from  that  of  Peo- 
ple V.  Johnson,  91  Cal.  265,  27  Pac.  663,  where  it  is  held  that,  where 
the  owner  puts  his  property  into  the  hands  of  another  to  do  some  act 
in  relation  to  it  in  his  presence,  he  does  not  part  with  the  possession 
of  it,  and  the  conversion  of  it  animo  furandi  is  larceny,  and  not  em- 
bezzlement.   See,  also,  2  Russell  on  Crimes  (8th  Am.  Ed.)  21.     *     *     * 

We  are  satisfied  that  the  judgment  should  be  affirmed. 


(C)  Larceny  by  Finder 


REGINA  V.  THURBORN. 
(Court  for  Crown  Cases  Reserved,  1849.    1  Ben.  C.  C.  387.) 

The  prisoner  was  tried  before  Parke,  B.,  at  the  Summer  Assizes 
for  Huntingdon,  1848,  for  stealing  a  bank  note. 

He  found  the  note,  which  had  been  accidentally  dropped  on  the 
high  road.  There  was  no  name  or  mark  on  it,  indicating  who  was 
the  owner;  nor  were  there  any  circumstances  attending  the  finding 
which  would  enable  him  to  discover  to  whom  the  note  belonged  when 
he  picked  it  up;  nor  had  he  any  reason  to  believe  that  the  owner 
knew  where  to  find  it  again.  The  prisoner  meant  to  appropriate  it 
to  his  own  use  when  he  picked  it  up.  The  day  after,  and  before  he 
had  disposed  of  it,  he  was  informed  that  the  prosecutor  was  the  owner. 


170  OFFENSES   AGAINST   PROPERTY 

and  had  dropped  it  accidentally.  He  then  changed  it,  and  appropri- 
ated the  money  taken  to  his  own  use.  The  jury  found  that  he  had 
reason  to  believe  and  did  believe  it  to  be  the  prosecutor's  property 
before  he  thus  changed  the  note. 

The  learned  Baron  directed  a  verdict  of  guilty,  intimating  that  he 
should  reserve  the  case  for  further  consideration.  Upon  conferring 
with  Maule,  J.,  the  learned  Baron  was  of  opinion  that  the  original 
taking  was  not  felonious,  and  that  in  the  subsequent  disposal  of  it 
there  was  no  taking,  and  he  therefore  declined  to  pass  sentence,  and 
ordered  the  prisoner  to  be  discharged,  on  entering  into  his  own  recog- 
nizance to  appear  when  called  upon. 

On  the  30th  of  April,  A.  D.  1849,  the  following  judgment  was  read 
by  Parke,  B.  : 

A  case  was  reserved  by  Parke;,  B.,  at  the  last  Huntingdon  Assizes. 
It  was  not  argued  by  counsel,  but  the  judges  who  attended  the  sit- 
ting of  the  court  after  Michaelmas  Term,  1848,  namely,  the  Lord 
Chief  Baron,  Patteson,  J.,  Roefe,  B.,  CrEsswell,  J.,  Williams, 
J.,  CoLTMAN,  J.,  and  Parke,  B.,  gave  it  much  consideration  on  ac- 
count of  its  importance,  and  the  frequency  of  the  occurrence  of  cases 
in  some  degree  similar  in  the  administration  of  the  criminal  law,  and 
the  somewhat  obscure  state  of  the  authorities  upon  it.  [The  learned 
Baron  here  stated  the  case.]  s     *     *     * 

In  the  present  case  there  is  no  doubt  that  the  bank  note  was  lost, 
the  owner  did  not  know  where  to  find  it,  the  prisoner  reasonably  be- 
lieved it  to  be  lost,  he  had  no  reason  to  know  to  whom  it  belonged, 
and  therefore,  though  he  took  it  with  the  intent,  not  of  taking  a  partial 
or  temporary,  but  the  entire,  dominion  over  it,  the  act  of  taking  did 
not,  in  our  opinion,  constitute  the  crime  of  larceny.  Whether  the 
subsequent  appropriation  of  it  to  his  own  use,  by  changing  it,  with 
the  knowledge  at  that  time  that  it  belonged  to  the  prosecutor,  does 
amount  to  that  crime,  will  be  afterwards  considered. 

It  appears,  however,  that  goods  which  do  fall  within  the  category 
of  lost  goods,  and  which  the  taker  justly  believes  to  have  been  lost, 
may  be  taken  and  converted,  so  as  to  constitute  the  crime  of  larceny, 
when  the  party  finding  may  be  presumed  to  know  the  owner  of  them, 
or  there  is  any  mark  upon  them,  presumably  known  by  him,  by  which 
the  owner  can  be  ascertained.  Whether  this  is  a  qualification  intro- 
duced in  modern  times,  or  which  always  existed,  we  need  not  deter- 
mine. It  may  have  proceeded  on  the  construction  of  the  reason  of 
the  old  rule,  "Quia  Dominus  rerum  non  apparet  ideo  cujus  sunt  in- 
certum  est,"  and  the  rule  is  held  not  to  apply  when  it  is  certain  who 
is  the  owner ;  but  the  authorities  are  many,  and  we  believe  this  qual- 
ification has  been  generally  adopted  in  practice,  and  we  must  there- 
fore consider  it  to  be  the  established  law.    There  are  many  reported 

6  I'art  of  the  opinion  is  omitted. 


LARCENY 


171 


cases  on  this  subject,  some  where  the  owner  of  goods  may  be  pre- 
sumed to  be  known,  from  the  circumstances  under  which  they  are 
found.  Amongst  these  are  inckided  the  cases  of  articles  left  in  hack- 
ney coaches  by  passengers,  which  the  coachman  appropriates  to  his 
own  use,  or  a  pocketbook,  found  in  a  coat  sent  to  a  tailor  to  be  re- 
paired, and  abstracted  and  opened  by  him.  In  these  cases  the  ap- 
propriation has  been  held  to  be  larceny.  Perhaps  these  cases  might 
be  classed  amongst  those  in  which  the  taker  is  not  justified  in  con- 
cluding that  the  goods  were  lost,  because  there  is  little  doubt  he  must 
have  believed  that  the  owner  would  know  where  to  find  them  again, 
and  he  had  no  pretense  to  consider  them  abandoned  or  derelict.  Some 
cases  appear  to  have  been  decided  on  the  ground  of  bailment,  deter- 
mined by  breaking  bulk,  which  would  constitute  a  trespass,  as  Wynne's 
Case,  Leach,  C.  C.  460 ;  but  it  seems  difficult  to  apply  that  doctrine, 
which  belongs  to  bailment,  where  a  special  property  is  acquired  by 
contract,  to  any  case  of  goods  merely  lost  and  found,  where  a  special 
property  is  acquired  by  finding. 

The  appropriation  of  goods  by  the  finder  has  also  been  held  to  be 
larceny,  where  the  owner  could  be  found  out  by  some  mark  on  them, 
as  in  the  case  of  lost  notes,  checks,  or  bills  with  the  owner's  name 
upon  them. 

This  subject  was  considered  in  the  case  of  Merry  v.  Green,  '7  M. . 
&  W.  623,  in  which  the  Court  of  Exchequer  acted  upon  the  author- 
ity of  these  decisions ;  and  in  the  argument  in  that  case  difficulties 
were  suggested,  whether  the  crime  of  larceny  could  be  committed  in 
the  case  of  a  marked  article,  a  check,  for  instance,  with  the  name  of 
the  owner  on  it,  where  a  person  originally  took  it  up,  intending  to 
look  at  it,  and  see  who  was  the  owner,  and  then,  as  soon  as  he  knew 
whose  it  was,  took  it,  animo  furandi,  as,  in  order  to  constitute  a  lar- 
ceny, the  taking  must  be  a  trespass,  and  it  was  asked  when  in  such  a 
case  the  trespass  was  committed?  In  answer  to  that  inquiry  the  dic- 
tum attributed  to  me  in  the  report  was  used — that  in  such  a  case  the 
trespass  must  be  taken  to  have  been  committed,  not  when  he  took  it 
up  to  look  at  it  and  see  whose  it  was,  but  afterwards,  when  he  appro- 
priated it  to  his  own  use,  animo  furandi. 

It  is  quite  a  mistake  to  suppose,  as  Mr.  Greaves  has  done  (volume 
2,  c.  14),  that  I  meant  to  lay  down  the  proposition  in  the  general 
terms  contained  in  the  extract  from  the  report  of  the  case  in  7  M.  & 
W.  623,  which,  taken  alone,  seems  to  be  applicable  to  every  case  of 
finding  unmarked,  as  well  as  marked,  property.  It  was  meant  to  ap- 
ply to  the  latter  only. 

The  result  of  these  authorities  is  that  the  rule  of  law  on  this  sub- 
ject seems  to  be  that  if  a  man  find  goods  that  have  been  actually  lost, 
or  are  reasonably  supposed  by  him  to  have  been  lost,  and  appropriates 
them,  with  the  intent  to  take  the  entire  dominion  over  them,  really  be- 


172  OFFENSES   AGAINST   PROPEKTY 

iieving,  when  he  takes  them,  that  the  owner  cannot  be  found,  it  is  not 
larceny ;  but  if  he  takes  them  with  the  Hke  intent,  though  lost  or  rea- 
sonably supposed  to  be  lost,  but  reasonably  believing  that  the  owner 
can  be  found,  it  is  larceny. 

In  applying  this  rule,  as,  indeed,  in  the  application  of  all  fixed  rules, 
questions  of  some  nicety  may  arise;  but  it  will  generally  be  ascer- 
tained whether  the  person  accused  had  reasonable  belief  that  the 
owner  could  be  found,  by  evidence  of  his  previous  acquaintance  with 
the  ownership  of  the  particular  chattel,  the  place  where  it  is  found, 
or  the  nature  of  the  marks  upon  it.  In  some  cases  it  would  be  ap- 
parent ;    in  others,  appear  only  after  examination. 

It  would  probably  be  presumed  that  the  taker  would  examine  the 
chattel  as  an  honest  man  ought  to  do  at  the  time  of  taking  it;  and, 
if  he  did  not  restore  it  to  the  owner,  the  jury  might  conclude  that  he 
took  it,  when  he  took  complete  possession  of  it,  animo  furandi.  The 
mere  taking  it  up  to  look  at  it  would  not  be  a  taking  possession  of  the 
chattel. 

To  apply  these  rules  to  the  present  case:  The  first  taking  did  not 
amount  to  larceny,  because  the  note  was  really  lost,  and  there  was 
no  mark  on  it,  or  other  circumstance  to  indicate  then  who  was  the 
owner,  or  that  he  might  be  found,  nor  any  evidence  to  rebut  the  pre- 
sumption that  would  arise,  from  the  finding  of  the  note  as  proved, 
that  he  believed  the  owner  could  not  be  found,  and  therefore  the 
original  taking  was  not  felonious ;  and  if  the  prisoner  had  changed 
the  note,  or  otherwise  disposed  of  it,  before  notice  of  the  title  of  the 
real  owner,  he  clearly  would  not  have  been  punishable ;  but  after  the 
prisoner  was  in  possession  of  the  note  the  owner  became  known  to 
him,  and  he  then  appropriated  it,  animo  furandi,  and  the  point  to  be 
decided  is  whether  that  was  a  felony. 

Upon  this  question  we  have  felt  considerable  doubt. 

If  he  had  taken  the  chattel  innocently,  and  afterwards  appropriated 
it  without  knowledge  of  the  ownership,  it  would  not  have  been  lar- 
ceny; nor  would  it,  we  think,  if  he  had  done  so  knowing  who  was 
the  owner,  for  he  had  the  lawful  possession  in  both  cases,  and  the 
conversion  would  not  have  been  a  trespass  in  either.  But  here  the 
original  taking  was  not  innocent  in  one  sense,  and  the  question  is, 
does  that  make  a  difference?  We  think  not.  It  was  dispunishable, 
as  we  have  already  decided,  and,  though  the  possession  was  accom- 
panied by  a  dishonest  intent,  it  was  still  a  lawful  possession,  and 
good  against  all  but  the  real  owner,  and  the  subsequent  conversion 
was  not,  therefore,  a  trespass  in  this  case  more  than  the  others,  and 
consequently  no  larceny. 

We  therefore  think  that  the  conviction  was  wrong. 


LARCENY  173 


(D)  Consent  of  Ozvner  to  Part  with  "Property"  as  Well  as  Possession 


REGINA  V.  STEWART  et  al. 
(Kent  Assizes,  1845.    1  Cox,  C.  C.  174.) 

The  prisoners  were  indicted  for  larceny,  under  the  following  cir- 
cumstances :  They  passed  for  husband  and  wife,  and,  having  taken 
a  house  at  Tunbridge  Wells,  Mrs.  Stewart  went  to  the  shop  of  the 
prosecutor,  selected  the  goods  in  question  to  the  amount  of  £10,  and 
ordered  them  to  be  sent  to  her  home.  The  prosecutor  accordingly  dis- 
patched the  goods  by  one  Davies,  and  gave  him  strict  injunction  not 
to  leave  them  without  receiving  the  price.  Davies,  on  arriving  at  the 
house,  told  the  two  prisoners  he  was  instructed  not  to  leave  the  goods 
without  the  money,  or  an  equivalent.  After  a  vain  attempt  on  the  part 
of  K.  Stewart  to  induce  Davies  to  let  him  have  the  property  on  the 
promise  of  payment  on  the  morrow,  he  (Stewart)  wrote  out  a  check 
for  the  amount  of  the  bill  and  gave  it  to  Davies,  requesting  him  not 
to  present  it  till  the  next  day.  It  was  drawn  on  the  London  Joint 
Stock  Bank,  Prince's  Street,  London,  and  Davies,  having  left  the 
goods,  returned  with  the  check  to  his  employers.  It  was  presented 
at  the  Bank,  in  London,  the  next  morning,  when  it  was  dishonored  for 
want  of  effects.  It  was  also  proved  that,  although  the  prisoner  had 
opened  an  account  at  the  said  bank,  it  had  been  some  time  before 
overdrawn,  and  several  of  his  checks  had  been  subsequently  dis- 
honored.    *     *     * 

Jones,  Serjt.,  then  submitted  that  the  charge  of  larceny  against 
Kidman  Stewart  could  not  be  sustained.  The  shopman  parted,  not 
only  with  the  possession  of  the  goods,  but  also  with  the  property  in 
them.  Nor  was  any  false  representation  made  to  him  to  induce  him 
so  to  do.  The  prisoner  requested  that  the  check  might  not  be  pre- 
sented until  the  next  day;  but  it  was  presented  on  the  next  morning, 
and  had  never  been  taken  to  the  banking  house  since.  Although  there 
were  no  funds  there  in  the  morning,  it  did  not  follow  that  provision 
might  not  have  been  made  for  the  check  in  the  course  of  the  day. 
This  is  like  the  case  of  R.  v.  Parker,  7  C.  &  P.  825,  where  the  pris- 
oner was  charged  with  falsely  pretending  that  a  postdated  check, 
drawn  by  himself,  was  a  good  and  genuine  order  for  £25,  whereby  he 
obtained  a  watch  and  chain.  There  the  prisoner  represented,  as  here, 
that  he  had  an  account  with  the  bank,  and  had  authority  to  draw  the 
check,  both  which  were  proved  to  be  false,  and  the  court  held  the  case 
one  of  false  pretenses. 

Alderson,  B.  It  is  for  you  to  show  that  the  prisoner  had '  rea- 
sonable ground  for  believing  that  the  check  would  be  paid.    The  case 


174  OFFENSES    AGAINST   PROPERTY 

seems  to  me  to  approach  more  nearly  to  R.  v.  Small,  8  C.  &  P.  46.. 
than  to  R.  v.  Parker.  In  the  former,  a  tradesmian  was  induced  to  send 
his  goods  by  a  servant  to  a  place  where  he  was  met  by  the  prisoner, 
who  induced  the  sen^ant  to  give  him  the  goods  in  exchange  for  a  coun- 
terfeit crown  piece,  and  it  was  held  to  be  larceny.  If  the  owner  of 
goods  parts  with  the  possession,  he  meaning  to  part  also  with  the  prop- 
erty, in  consequence  of  a  fraudulent  representation  of  the  party  ob- 
taining them,  it  is  not  larceny,  but  a  mere  cheat.  But  if  the  ov/ner 
does  not  mean  to  part  even  with  the  possession,  except  in  a  certain 
event,  which  does  not  happen,  and  the  prisoner  causes  him  to  part  with 
them  by  means  of  fraud,  he  (the  owner)  still  not  meaning  to  part  with 
the  property,  then  the  case  is  one  of  larceny.  Here,  if  the  owner  had 
himself  carried  the  goods  and  parted  with  them,  as  the  servant  did,  no 
doubt  it  would  have  been  a  case  of  false  pretenses ;  or,  if  the  servant 
had  had  a  general  authority  to  act,  it  would  have  been  the  same  as 
though  the  master  acted.  But  in  this  instance  he  had  but  a  limited  au- 
thority, which  he  chose  to  exceed.  I  am  of  opinion,  as  at  present 
advised,  that  if  the  prisoner  intended  to  get  possession  of  these  goods 
by  giving  a  piece  of  paper,  which  he  had  no  reasonable  ground  to  be- 
lieve would  be  of  use  to  anybody,  and  that  the  servant  had  received 
positive  instructions  not  to  leave  the  articles  without  cash  payment,  the 
charge  of  larceny  is  made  out. 


(B)  Delivery  by  Mistake 


REGINA  V.  HEHIR. 

(Court  for  Crown  Cases  Reserved.    [1S95]  2  Ir.  R.  709.) 

Denis  Hehir  was  indicted  for  the  larceny  of  a  £10  note,  of  the  goods 
and  chattels  of  one  John  Leech.  It  appears  from  the  evidence  that 
this  ilO  note  was  handed  by  Leech  to  Hehir  in  part  payment  of  a  sum 
of  £2.  8s.  9d.  due  by  the  former  to  the  latter,  and  that,  at  the  time 
when  it  was  so  handed,  both  Leech  and  Hehir  believed  it  to  be  a  £1 
note.  It  further  appears  that,  after  the  lapse  of  a  substantial  period 
of  time,  Hehir  became  aware  that  the  note  was  one  for  £10,  where- 
upon, in  the  words  of  the  case,  "he  fraudulently  and  without  color  of 
right  intended  to  convert  the  said  note  to  his  own  use,  and  to  perma- 
nently deprive  the  said  John  Leech  thereof,  and  that  to  effectuate  such 
intention  the  said  prisoner  shortly  afterwards  changed  the  said  note 
and  disposed  of  the  proceeds  thereof." 


LARCENY  1<^ 

The  case  was  left  by  the  Lord  Chief  Baron  to  the  Jury  (who  found 
the  -prisoner  guilty),  in  order  to  obtain  an  authoritative  decision  upon 
a  question  upon  which  the  Court  for  Crown  Cases  Reserved  in  Eng- 
land was  equally  divided  in  The  Queen  v.  Ashwell,  16  Q.  B.  D.  190. 
That  question  he  reserved  for  this  court  in  the  following  words: 
"Whether  I  ought  to  have  directed  a  verdict  of  acquittal  by  reason  of 
the  prisoner  not  having  had  the  animus  furandi  when  Leech  handed 
him  the  £10  note?"     *     *     * 

Gibson,  j.e  *  *  *  j^  the  present  case  there  was  a  physical  de- 
livery, in  intended  performance  of  a  contract,  without  knowledge  or 
intent  on  the  part  of  the  owner  to  give,  or  on  the  part  of  the  taker  to 
accept,  possession  of  the  particular  chattel  actually  delivered.  Until 
discovery  by  the  taker,  the  legal  possession  seems  not  to  be  divested 
out  of  the  owner,  if  it  be  not  in  suspense.  Until  knowledge  and  elec- 
tion, the  law  ought  not  to  attribute  to  the  taker  an  intent  to  divest  the 
owner's  possession  without  his  consent,  which  would  be  a  wrongful 
act,  or  to  accept  a  possession  which  in  case  of  some  chattels  might  be 
onerous.  The  physical  occupation  raises  an  inference  of  legal  pos- 
session, just  as  it  does  of  property  of  which  possession  is  part  and 
symbol;  but  common  error,  which  rebuts  contract,  also  rebuts  that 
inference.  The  character  of  the  physical  possession  is  ambiguous  un- 
til discovery,  and  ought  to  be  interpreted  in  an  innocent  rather  than 
a  tortious  sense.  If,  upon  discovery,  the  taker  elects  to  return  the  chat- 
tel to  the  proper  custody,  as  it  is  his  duty  to  do,  his  previous  relation 
to  the  chattel  is  thereby  determined,  as  resembling  custody  rather  than 
possession.  On  the  other  hand,  if  he  then  decides  to  misappropriate, 
knowing  that  there  has  been  no  consent  by  the  owner,  one  of  two  views 
is  'possible.  His  possession  up  to  that  time  may  be  regarded  as  in- 
complete, and  is  then  finally  determined  by  his  tortious  election  as 
wrongful  throughout.  Woodward's  Case,  L.  &  C.  122.  Or  he  may  be 
regarded  as  then  and  there  for  the  first  time  taking  out  of  the  owner's 
possession  the  chattel  which  is  to  be  considered  as  mislaid  rather  than 
as  lost.  During  the  suspense  period,  his  acts  done  in  innocent  igno- 
rance are  excused;  but  the  excuse,  founded  not  on  consent,  but  on 
misleading,  applies  only  as  far  as  he  is  misled,  and  does  not  operate 
when,  knowing  the  mistake,  he  deliberately  commits  a  tort  by  taking 
possession  of  and  converting  the  chattel. 

The  second  question  for  consideration  is  the  lawfulness  of  posses- 
sion, where  the  delivery  has  taken  place  under  a  common  mistake  of 
such  a  character  as  to  exclude  the  mental  agreement  necessary  to  the 
formation  of  a  contract.  The  mistake  may  be  as  to  the  identity  of 
the  transferee  (Cundy  v.  Lindsay,  3  App.  Cas.  459),  or  as  to  the  iden- 

6  The  facts  are  printed  from  the  opinion  of  Madden,  J.  Part  of  the  opinion 
of  Gibson,  J.,  and  the  opinions  of  Holmes,  Murphy,  Johnson,  Andrews,  and 
O'Brien,  JJ.,  Palles,  C.  B.,  and  P.  O'Brien,  L.  C,  are  omitted. 


17G  OFFENSES   AGAINST   PROPERTY 

tity  of  the  subject-matter  of  contract,  as  in  Middleton's  and  Ashvvell's 
Cases,  or  a  mistake  compounded  of  both  these  elements. 

It  may  be  taken  that  a  consent  to  possession  obtained  by  fraud  or 
force,  animo  furandi,  is  unavailing,  and  that  possession  under  it  would 
be  unlawful  and  trespassory.  It  is  also  certain  that  in  such  a  case  as 
we  have  here  to  deal  with  property  cannot  pass.  If  common  mistake 
prevents  contract,  and  property  cannot  pass,  why  should  possession, 
which  is  part  and  symliol  of  property,  pass,  when  neither  party  in- 
tended to  divorce  possession  from  property?  Physical  delivery  by 
owner  to  taker  may  be  evidence  of  consent;  but  delivery  can  hardly 
be  conclusive  and  irrebuttable  proof  of  an  intelligent  transfer  of  pos- 
session, when  neither  party  intends  to  make  or  accept  such  trans- 
fer.    *     *     * 

This  question  of  consent  is  one  of  substance,  and  not  form.  It  can- 
not be  treated  as  disposed  of  by  the  fact  of  physical  deHvery  without 
more.  A  delivery  by  a  man  in  delirium  or  asleep,  or  hypnotized,  would 
be  void,  because  unaccompanied  by  intelligent  volition.  The  mistake, 
as  it  occurs  to  me,  made  by  many  of  the  learned  judges  in  Ashwell's 
Case,  16  Q.  B.  D.  190,  seems  much  the  same  as  that  which  was  cor- 
rected in  Reg.  v.  Dee,  14  L.  R.  Ir.  468.  A  consent  must  be  to  the  par- 
ticular act  or  thing  and  to  the  particular  person.  A  consent  to  inter- 
course obtained  by  fraudulent  personation  from  a  married  woman,  in 
the  belief  that  the  act  was  marital  connection  with  her  husband,  was, 
as  there  pointed  out,  no  consent  at  all  to  an  act  of  adultery  with  a  stran- 
ger. This  absence  of  consent  does  not,  I  think,  depend  on  fraud.  It 
is  a  conceivable  case  that  a  married  woman  might,  in  the  dark,  submit 
to  a  man  whom  she  believed  to  be  her  husband,  without  guilty  intent 
on  his  part,  from  a  mistake  of  rooms  or  otherwise.  In  a  civil  actfon 
for  assault  I  doubt  that  he  could  justify  his  possession  of  the  woman 
by  leave  and  license,  though,  of  course,  from  absence  of  mens  rea,  he 
would  not  be  guilty  of  rape. 

It  may,  however,  be  said  that,  irrespective  of  consent,  if  the  taker  of 
a  chattel  delivered  under  mistake  is  protected  by  a  kind  of  estoppel, 
he  is  to  be  deemed,  as  against  the  owner,  to  be  lawfully  in  possession 
while  such  estoppel  continues ;  that  is,  until  the  mistake  becomes 
known  to  him.  This  suggestion  (which  has  caused  me  more  difficulty 
than  any  other  point),  I  think,  is  founded  partly  on  a  confusion  of 
physical  possession,  or  custody,  with  legal  possession,  and  partly  on  a 
misunderstanding  arising  from  the  use  of  the  word  "estoppel" — an 
expression  which  is  likely  to  cause  misconception.  Until  discovery, 
the  relation  of  the  taker  to  the  chattel,  which  he  holds  without  con- 
sciousness of  its  identity,  is,  against  the  owner,  custody  or  detention 
only.  So  far  as  he  has  acted  under  the  mistake,  he  is  protected.  This 
protection  extends  to  his  custody  of  the  chattel  and  to  his  conduct  in 
parting  with  the  chattel,  if  he  has  done  so.  The  delivery  under  mutual 
mistake  of  identity  does  not  work  an  estoppel  in  the  sense  that  the 


LARCENY 


177 


property  must  be  taken  to  pass.  But  the  taker  is  excused  in  respect 
of  everything  attributable  to  the  mistake  for  which  the  owner  is  re- 
sponsible. While  the  chattel  remains  in  the  taker's  hands,  he  is  under 
a  duty  to  give  it  up  on  demand.  His  detention  of  the  chattel  till  dis- 
covery is  lawful ;  but  it  is  not  necessary  for  his  protection  that  such 
physical  detention  should  be  enlarged  into  possession,  though,  if  he 
had  parted  with  the  chattel  in  ignorance,  he  would  be  protected  even  as 
to  the  property,  notwithstanding  that,  by  reason  of  the  nonexistence 
of  contract,  the  property  had  not  passed  to  him.  It  appears  to  me  that 
the  lawfulness  of  the  detention  while  the  mistake  as  to  identity  con- 
tinues does  not  draw  with  it  as  a  consequence  that  upon  discovery  the 
taker  can  lawfully  turn  detention  into  possession  and  appropriate  the 
chattel.  The  protection  given  to  mistake  does  not  extend  to  fraud. 
There  are  many  cases  in  which  a  taker  would  be  under  no  responsibility 
or  duty  to  the  owner  where  willful  misappropriation  on  discovery 
would  seem  to  be  theft.     *     *     * 

Legal  principle  and  weight  of  authority,  I  think,  and  common  sense 
and  reason,  I  believe— if  I  may  be  excused  for  introducing  such  mat- 
ters into  the  discussion  of  a  common-law  offense — point  in  favor  of 
conviction.  Following  their  guidance,  I  must  decide  that  Hehir,  who 
is  morally  a  rogue,  is  legally  a  felon  according  to  the  law  of  this  king- 
dom.    *     *     * 


3.  The  Asportation 


REGINA  V.  SIMPSON. 

(Court  for  Crown  Cases  Reserved,  1854.     1  Dears.  421.) 

The  following  case  was  reserved  for  the  opinion  of  the  Court 
of  Criminal  Appeal  by  W.  H.  Bodkin,  Esq.,  acting  as  assistant  judge 
of  the  Middlesex  Sessions. 

William  Simpson  was  tried  before  me  at  the  Sessions  of  the  Peace 
for  the  county  of  Middlesex,  in  July,  1854,  upon  an  indictment  which 
charged  him  with  having  stolen  from  the  person  of  Michael  Map- 
per a  gold  watch  and  chain,  his  property.  The  watch  was  carried 
by  the  prosecutor  in  the  pocket  of  his  waistcoat,  and  the  chain, 
which  was  at  one  end  attached  to  the  watch,  was  at  the  other  end 
passed  through  the  buttonhole  of  his  waistcoat,  where  it  was  kept 
by  a  watch  key,  turned  so  as  to  prevent  the  chain  slipping  through. 
The  prisoner  took  the  watch  out  of  the  prosecutor's  pocket,  and 
forcibly  drew  the  chain  out  of  the  buttonhole;  but  his  hand  was 
Mtkkt-t.  Cas.Cb.L. — 12 


178  OFFENSES   AGAINST    PROPERTY 

seized  by  the  prosecutor's  wife,  and  it  then  appeared  that,  although 
the  chain  and  watch  key  had  been  drawn  out  of  the  buttonhole,  the 
point  of  the  key  had  caught  upon  another  button,  and  was  thereby 
suspended.  It  was  contended  for  the  prisoner  that  he  was  guilty  of 
an  attempt  only ;  but  I  thought  that,  as  the  chain  had  been  removed 
from  the  buttonhole,  the  felony  was  complete,  notwithstanding  its 
subsequent  detention  by  its  contact  with  the  other  button.  The  jury 
found  the  prisoner  guilty  of  the  felony;  and,  a  former  conviction 
having  been  proved,  he  was  sentenced  to  penal  servitude  for  four 
years.  The  execution  of  the  sentence  was  respited,  and  the  pris- 
oner was  committed  to  the  House  of  Correction,  Coldbath  Fields, 
where  he  now  is.  I  have  to  pray  the  judgment  of  this  honorable 
court  whether  the  facts  above  stated  justify  the  conviction  in  point 
of  law. 

This  case  was  argued  on  the  11th  of  November,  1854,  before  Jejr- 
vis,  C.  J.,  Aldi;rson,  B.,  Colkridgs,  J.,  Martin,  B.,  and  Crowd^r,  J. 

Payne  appeared  for  the  crown,  and  Parry  for  the  prisoner. 

Parry,  for  the  prisoner.  The  conviction  was  wrong.  There  may 
have  been  a  simple  larceny,  but  the  asportation  was  not  sufficient 
to  warrant  a  conviction  for  stealing  from  the  person.  The  watch 
chain,  though  drawn  out  of  the  buttonhole,  caught  on  the  button, 
and  the  property  never  was  entirely  severed  from  the  prosecutor's 
person. 

Alde:rson,  B.  Whilst  it  was  between  the  button  and  the  button- 
hole, where  was  it? 

Parry.  It  was  about  the  person  of  the  prosecutor.  The  watch 
always  remained  about  his  person,  and  its  ultimate  condition  was 
that  it  was  suspended  from  the  button.  It  never  was  finally  and 
entirely  removed  from  the  person  of  the  prosecutor.  In  Rex  v. 
Wilkinson,  1  Hale,  P.  C.  508,  where  a  thief  took  from  the  pocket 
of  the  owner  a  purse,  to  the  strings  of  which  some  keys  were  tied, 
and  was  apprehended  with  the  purse  in  her  hand,  but  still  hanging 
by  means  of  the  keys  to  the  pocket  of  the  owner,  it  was  ruled  not 
to  be  larceny,  for  the  prosecutor  had  still,  in  law,  the  possession  of 
the  purse,  and  licet  cepit  non  asportavit. 

Coleridge,  J.  In  that  case  there  never  was  a  severance,  here  there 
was,  and  the  case  expressly  speaks  of  the  "subsequent  detention"  of 
the  chain. 

Parry.  It  is  not  necessary  for  me  to  go  so  far  as  that  case,  be- 
cause it  may  be  conceded  that  in  this  case  there  was  a  sufficient  as- 
portation to  support  a  charge  of  simple  larceny. 

AldERSON,  B.  The  nearest  case  to  the  present  one  seems  to  be 
Rex  V.  Thompson,  1  Moo.  78. 

Parry.  In  that  case  a  pocketbook  was  drawn  by  the  prisoner  out 
of  the  owner's  inside  coat  pocket,  and  lifted  one  inch  above  the  top 
of  the  pocket,  and  then,  the  hand  of  the  thief  being  caught,  it   fell 


LARCENY 


179 


back  into  the  pocket,  and,  though  all  the  judges  held  it  larceny,  they 
were  divided  whether  it  was  a  stealing  from  the  person,  as  the 
pocketbook  remained  about  the  person  of  the  owner;  and  the  ma- 
jority of  the  judges  held  that  it  was  not. 

Aldi;rson,  B.  How  do  you  distinguish  this  case  from  Rex  v. 
Lapier,  1  Leach,  C.  C.  60,  in  which  the  earring  was  torn  from  a 
lady's  ear  and  fell  upon  her  curl? 

Parry.  There  the  forcing  it  from  her  ear  was  a  severance  from 
her  person,  but  I  contend  that  in  this  case  there  was  no  actual 
severance.  There  is  a  case  of  Rex  v.  Farrell,  1  Leach,  C.  C.  362, 
where  it  appeared  that  the  prisoner  stopped  the  prosecutor  as  he 
was  carrying  a  feather  bed  on  his  shoulders,  and  told  him  to  lay  it 
down  or  he  would  shoot  him,  and  the  prosecutor  accordingly  laid 
the  bed  on  the  ground,  but  the  prisoner  was  apprehended  before  he 
could  remove  it  from  the  spot  where  it  lay;  and  the  judges  were 
of  opinion  that  the  offense  of  robbery  was  not  completed.  All  the 
cases  show  the  wide  distinction  between  a  simple  larceny  and  a  steal- 
ing from  the  person.  The  distinction  is  one  which  ought  to  be  con- 
sidered strictly  in  favor  of  a  prisoner,  and,  although  this  case  may 
be  on  the  very  confines  of  a  severance,  I  contend  that  no  actual  sev- 
erance ever  took  place. 

Payne,  for  the  crown,  was  not  called  upon. 

Jervis,  C.  J.  We  all  are  of  opinion  that  the  conviction  was  right. 
This  case  is  in  no  respect  like  that  mentiqned  by  Lord  Hale,  where 
the  prisoner  took  the  purse  attached  by  its  strings  to  the  keys,  which 
entangled  in  the  pocket  of  the  prosecutor.  In  that  case  there  was 
at  no  moment  the  slightest  severance  from  the  person;  but  this  is 
precisely  similar  to  Lapier's  Case,  in  which  the  jewel  was  torn  from 
the  ear  of  the  prosecutrix  and  dropped  amongst  her  curls.  The  ear 
in  Lapier's  Case  is  like  the  buttonhole  in  this,  and  the  curl  is  like  the 
button  below.  The  watch  was  no  doubt  temporarily,  though  but  for 
one  moment,  in  the  possession  of  the  prisoner.  In  Thompson's  Case 
there  seems  to  have  been  some  confusion  in  the  use  of  the  expression 
"about  the  person."  The  words  of  the  act  are  "from  the  person,"  and, 
with  submission  to  the  majority  of  the  judges  who  held  the  asportation 
in  that  case  not  to  be  sufficient,  I  think  the  minority  were  right.  The 
judges  in  that  case  may  have  thought  that  the  outer  coat  which  covered 
the  pocket  formed  a  protection  to  the  pocketbook ;  but  we  must  not 
fritter  away  the  law  by  refining  upon  nice  distinctions  in  a  way  to  pre- 
vent our  decisions  from  being  consistent  with  common  sense. 

Ald^rson,  B.  To  constitute  the  offense  there  must  be  a  removal 
of  the  property  from  the  person;   but  a  hair's  breadth  will  do. 

The  other  learned  judges  concurred. 

Conviction  confirmed. 


180  OFFENSES   AGAINST   PROPEETT 


4.  Thi;  Intent 


PHILLIPS  AND  STRONG'S  CASE. 

(Gloucester  Assizes,  ISOl.    2  East,  P.  C.  662.) 

Phillips  and  Strong  were  indicted  for  stealing  a  mare  and  gelding  of 
John  Coulter.  It  appeared  in  evidence  that  the  prisoners  had  gone  to 
the  stables  of  Coulter,  who  kept  an  inn  at  a  place  called  Petty  France, 
in  the  night  of  the  26th  of  February  last,  opened  them,  and  taken  out 
the  horse  and  mare,  the  subject  of  the  indictment,  and  rode  on  them 
to  Lechlade,  about  32  or  33  miles  off,  where  they  carried  them  to  dif- 
ferent inns,  and  left  them  in  care  of  the  hostlers,  directing  them  to 
clean  and  feed  them,  and  saying  that  they  should  return  in  three  hours. 
In  the  course  of  the  same  day  the  prisoners  were  taken  at  a  distance 
of  14  miles  from  Lechlade,  walking  toward  Farringdon,  in  Berkshire, 
in  a  direction  from  Lechlade.  The  jury,  being  directed  to  consider 
whether  the  prisoners,  when  they  took  the  horse  and  mare,  intended  to 
make  any  further  use  of  them  than  to  ride  them,  for  the  purpose  of  as- 
sisting them  in  their  journey  towards  the  place  where  they  were  going, 
and  then  to  leave  them,  to  be  recovered  by  the  owner  or  not,  as  it  might 
turn  out,  and  whether  they  intended  to  return  to  Lechlade  and  make 
any  further  use  of  them,  found  the  prisoners  guilty,  but  added  they 
were  of  opinion  that  the  prisoners  meant  merely  to  ride  them  to  Lech- 
lade and  to  leave  them  there,  and  that  they  had  no  intention  to  return 
for  them,  or  to  make  any  further  use  of  them.  Upon  this  finding,  at 
a  conference  first  in  Easter,  and  afterwards  in  Trinity  Term,  180L  the 
judges  (dissentiente  Crose,  J.,  et  dubitante  Lord  Alvanly)  held  it  to  be 
only  a  trespass,  and  no  felony,  for  there  was  no  intention  in  the  pris- 
oners to  change  the  property  or  make  it  their  own,  but  only  to  use  it 
for  a  special  purpose — i.  e.,  to  save  their  labor  in  traveling.  The  judge 
who  dissented  thought  the  case  differed  from  those  first  above  men- 
tioned, because  here  there  was  no  intention  to  return  the  horses  to  the 
owner,  but,  for  aught  the  prisoners  concerned  themselves,  to  deprive 
him  of  them.  But  the  rest  agreed  that  it  was  a  question  for  the  jury, 
and  that,  if  they  had  found  the  prisoners  guilty  generally  upon  this  evi- 
dence, the  verdict  could  not  have  been  questioned. 


LARCENY  18] 


REGINA  V.  GODFREY. 
(Worcester  Assizes,  18.38.    8  Car.  &  P.  563.) 

Larceny.  The  indictment  charged  the  prisoner  with  having  stolen 
six  sheets  of  paper,  of  the  value  of  threepence,  and  a  paper  parcel  con- 
taining two  letters,  of  the  value  of  threepence,  of  the  goods  and  chat- 
tels of  William  Brinton. 

It  was  opened  by  W.  J.  Alexander,  for  the  prosecution,  that  Mr. 
Brinton  was  a  solicitor  at  Kidderminster,  and  that  the  prisoner,  Mr. 
Godfrey,  was  an  innkeeper  and  stagecoach  proprietor  at  that  place, 
and  that  on  Saturday,  the  29th  of  July,  1837,  Mr.  Brinton  being  at 
Brierley  Hill,  engaged  in  the  south  Staffordshire  election,  he  had 
occasion  to  send  two  letters  to  Kidderminster ;  these  letters  being  in- 
closed in  a  parcel  addressed,  "Mrs.  W.  Brinton,  Kidderminster.  Im- 
mediate." The  parcel  was  sent  by  a  coach  of  which  the  pris- 
oner was  the  proprietor.  However,  on  Mr.  Brinton's  arriving  at 
home  on  the  next  day,  he  discovered  that  the  parcel  had  not  arrived; 
and  on  a  note  being  sent  to  Mr.  Godfrey  respecting  it  he  returned 
a  written  answer,  stating  that  no  parcel  had  arrived  directed  to  W. 
Brinton,  Esq.,  and  in  answer  to  another  note  he  replied  that  no  parcel 
had  arrived  for  Mr.  Brinton.  It  would,  however,  be  proved  that 
the  parcel  did  arrive,  and  that  Mr.  Godfrey  himself  received  and 
opened  it,  and,  finding  it  to  contain  letters,  he  broke  the  seals  and  read 
them,  and  then  disposed  of  them  in  such  manner  as  he  thought 
proper. 

Lord  Abinger,  C.  B.  The  facts  you  have  opened  are  rather  a  tres- 
pass than  a  felony.  Opening  a  letter  from  idle  curiosity  would  not 
be  felony. 

W.  J.  Alexander.  I  should  submit  that,  where  the  act  was  done 
with  intent  to  injure  another,  that  would  be  sufficient. 

Lord  Abinger,  C.  B.  The  term  "lucri  causa''  infers  that  it  should 
be  to  gain  some  advantage  to  the  party  committing  the  ofifense.  A 
malicious  injury  to  the  property  of  another  is  not  enough. 

W.  J.  Alexander.  In  Cabbage's  Case  it  was  held  that  a  taking  with 
intent  to  destroy  is  a  stealing,  if  it  be  done  to  effect  an  object  of  sup- 
posed advantage  to  the  party  committing  the  ofifense,  or  to  a  third 
person.  There  a  person  took  a  horse,  and  backed  it  into  a  coal  pit 
and  killed  it,  his  object  being  that  the  horse  might  not  contribute  to 
furnish  evidence  against  another  person,  who  was  charged  with  steal- 
ing it ;  and  that  was  held  to  be  larceny,  six  judges  against  five  hold- 
ing it  not  to  be  essential  that  the  taking  should  be  lucri  causa,  but 
thinking  that  a  taking  fraudulenter,  with  intent  wholly  to  deprive  the 
owner  of  the  property,  was  sufficient. 

Lord  Abinger,  C.  B.  I  cannot  accede  to  that.  If  a  person,  from 
idle,  impertinent  curiosity,  either  personal  or  political,  opens  another 


182  OFFENSES   AGAINST   PKOPERTT 

person's  letter,  that  it  is  not  felony.  Mr.  Alexander  has  opened  an 
action  for  not  safely  delivering  a  parcel,  in  which  a  jury  might  give 
considerable  damages.  I  cannot  see  any  excuse  for  the  conduct  of  the 
defendant,  if  it  was  as  stated.  Still,  assuming  that  statement  to_  be 
correct,  it  is  no  felony.  It  was  evidently  done  to  gratify  some  idle 
curiosity,  or,  perhaps,  to  prevent  the  ktters  from  arriving.  It  is  a 
trespass  and  a  breach  of  contract,  but  no  felony. 

His  Lordship  directed  an  acquittal. 

Verdict — Not  guilty. 


COMMONWEALTH  v.  WHITE. 

(Supreme  Judicial  Court  of  Massachusetts,  1853.    65  Mass.  [11  Cush.]  483.) 

Indictment  for  larceny  from  a  stable,  of  a  horse,  wagon,  and  har- 
ness, alleged  to  have  been  committed  in  the  county  of  Bristol.     The 
stable  was  situated  in  Easton,  in  that  county,  and  the  property  be- 
longed to  John  McDonald.    At  the  trial  in  the  court  of  common  pleas, 
before  Wells,  C.  J.,  the  eviHence  tended  to  prove  that  said  property 
was  in  the  stable  of  the  owner,  who  was  absent.     The  said  James 
White  represented  to  Josiah  White,.  Jr.,  the  other  defendant,  that  he 
had  hired  the  horse  and  wagon  of  the  owner,  and  invited  him  to  go  to 
North  Bridgewater.    They  harnessed  the  horse  about  5  o'clock  p.  m. 
and  started,  and  met  the  owner.    He  called  to  them  to  stop,  but  they 
passed  on  without  heeding  him.     They  went  to  North  Bridgewater, 
and  stayed  there  till  evening,  when  they  started  on  their  way  back. 
The  horse  becoming  disabled  by  a  fall,  they  unharnessed  him,  turned 
him  loose,  and  took  another  horse  from  a  pasture  near  the  road,  and 
harnessed  him  into  the  wagon,  and  proceeded  into  Easton  on  the 
road  towards  the  stable  of  the  owner.     While  riding   along  in  the 
town  of  Easton,  James  White  proposed  to  Josiah  to  go  to  Brighton, 
in  the  county  of  Middlesex.    Josiah  consented,  and  they,  while  in  the 
town  of  Easton,  turned  from  the  road  leading  to  the  stable  of  Mc- 
Donald and  drove  to  Brighton.    And  there  Josiah,  under  the  instruc- 
tion and  direction  of  James,  put  the  property  into  the  hands  of  an 
auctioneer,  stating  that  his  name  was  Johnson,  and  that  the  horse  be- 
longed to  his  father,  who  had  given  him  leave  to  sell  him.     The  auc- 
tioneer sold  the  same,  but,  something  happening  to  excite  his  sus- 
picions, he  refused  to  pay  over  the  money.     McDonald  testified  that 
he  did  not  let  the  horse,  wagon,  and  harness,  or  either  of  them,  to 
James  White,  nor  had  he  ever  let  to  him  any  horse,  wagon,  or  harness, 
but  that  he  had  sometimes,  but  not  on   this  occasion,  let  to  Josiah 
White,  Sr.,  the  wagon  and  harness,  but  never  that  horse;    that  he 
did  not  use  any  force  to  stop  defendants,  when  he  met  them,  because 
it  would  have  been  very  inconvenient  for  him  to  have  got  of^  from 


LARCENY  1S3 

his  load ;    and  that  he  expected  they  would   return  the  horse  and 
vva"on. 

The  counsel  for  the  defendant  contended:  (1)  That  if  the  prop- 
erty was  let  to  James  White  and  Josiah  White,  Jr.,  there  was  no 
larceny.  (2)  That  if  the  defendant  took  the  property  without  leave, 
although  the  taking  was  a  trespass,  but  if  he  intended,  when  he  took 
it,  to  return  it,  there  was  no  larceny,  although,  while  on  the  way,  he 
should  determine  to  appropriate  the  property,  and  should  proceed  to 
do  with  it  as  appeared  from  the  testimony.  (3)  That  there  was  no 
evidence  of  such  a  conversion  of  the  property  as  would  amount  to 
the  crime  of  larceny,  if  the  property  was  taken  without  leave,  but  with 
the  intention  at  the  time  of  returning  it. 

But  the  court  instructed  the  jury  that  if  the  taking  was  a  trespass, 
and  if  the  trespasser,  at  the  time  of  taking,  intended  to  appropriate 
the  property  to  his  own  use,  the  taking  would  be  a  larceny  of  the 
entire  property.  If  the  taking  was  a  trespass,  but  the  defendant  in- 
tended at  the  time  of  taking  to  return  the  property,  and  this  inten- 
tion continued  until  after  the  shifting  of  the  horses,  there  was  no 
larceny  of  the  horse.  But  if  afterwards,  and  before  proposing  to  go 
to  Brighton,  the  defendant  determined  to  take  the  property  to  Brigh- 
ton and  there  dispose  of  it  as  his  own,  and  he  did  in  pursuance  of 
that  determination  do  that  which  was  stated  in  the  testimony,  this 
would  amount  to  larceny  of  the  wagon  and  harness. 

The  jury  found  the  defendant  guilty  of  simple  larceny  of  the  wagon 
and  harness,  and  not  guilty  of  the  residue  of  the  charge  in  the  in- 
dictment, and  to  these  instructions  the  defendant  excepted. 

Merrick,  J.  There  appears  to  be  no  legal  objection  to  the  con- 
viction of  the  defendant.  The  questions  of  fact  which  arose  upon 
the  trial  were  submitted  to  the  jury,  under  suitable  and  accurate  in- 
structions in  matters  of  law.  The  wrongful  taking  of  goods  by  a 
party  with  an  intent  to  assume  them  as  his  own,  or  to  convert  them 
to  his  own  use,  is  a  trespass  merely.  And  in  many  cases  the  subse- 
quent fraudulent  appropriation  and  conversion  of  goods,  the  pos- 
session of  which  has  been  rightfully  obtained,  does  not  constitute  a 
felony.  Rose.  Crim.  Ev.  472,  478;  Archb.  Crim.  PI.  186.  But  if 
a  person  by  committing  a  trespass  has  tortiously  and  unlawfully  ac- 
quired possession  of  personal  property  belonging  to  anoth.er,  and 
afterwards  conceives  the  purpose  of  fraudulently  depriving  the  owner 
of  it,  and  in  pursuance  of  that  design,  with  a  felonious  intent,  car- 
ries it  away  and  converts  it  to  his  own  use,  he  thereby  commits  and 
is  guilty  of  the  crime  of  larceny.  1  Hale,  P.  C.  507;  2  East,  P.  C. 
662;  Regina  v.  Riley,  1  Dears.  C.  C.  149.  This  is  the  effect  and 
substance  of  the  explanation  and  statement  of  the  law  made  by  the 
presiding  judge  upon  the  trial.  While  the  defendant  was  on  his 
way  to  North  Bridgewater,  and  also  during  the  time  of  his  return, 
until  he  fraudulently  determined  to  appropriate  and  convert  the  horse 


184  OFFENSES  AGAINST  PROPERTY 

to  his  own  use,  and  until  he  did  some  act  in  execution  of  that  purpose, 
he  was  only  a  trespasser ;  but  he  made  himself  a  thief  as  soon  as 
he  drove  or  led  away  the  horse,  or  made  any  disposition  of  him  with 
such  a  felonious  intent.  This,  indeed,  is  not  strenuously  denied  by 
his  counsel,  who  relies,  in  the  defense,  much  more  upon  the  objection 
that  no  larceny  was  committed  before  the  arrival  of  the  defendant 
at  Brighton  in  the  county  of  Middlesex.  But  it  is  clear  that  the 
crime  had  been  fully  committed  at  an  earlier  period.  The  jury  must 
have  found,  under  the  direction  of  the  court,  that  the  defendant 
formed  the  determination  to  take  the  property  to  Brighton  and  there 
dispose  of  it  as  his  own  before  "the  horses  were  shifted,"  and  that  he 
drove  on  in  execution  of  that  design  until  the  horse  became  "dis- 
abled by  a  fall."  Here,  then,  while  the  defendant  was  still  in  the 
county  of  Bristol,  are  developed  the  existence  of  all  the  elements  of 
the  crime  of  larceny — the  unlawful  taking,  the  felonious  intent,  and 
the  fraudulent  conversion  of  the  property  to  his  own  use.  Upon 
such  proof  a  conviction  was  inevitable,  and  the  verdict  against  the 
defendant  must  therefore  be  affirmed. 
Exceptions  overruled. 


5.  Compound  Larceny 


REX  v.  OWEN. 

(Court  for  Crown  Cases  Reserved,  1792.    2  Leach,  C.  C.  [4tli  Ed.]  572.) 

Edward  Owen  was  indicted  for  stealing  105  guineas,  the  property  of 
James  Foreman,  in  the  dwelling  house  of  Patrick  Brady.  Brady  kept 
a  public  house  in  Holborn,  into  which  Foreman  was  seduced  by  the 
prisoner,  under  pretense  of  dividing  the  value  of  a  cross  which  the 
prisoner  picked  up  and  pretended  to  have  found  in  the  street,  and  then 
the  prisoner  obtained  the  105  guineas  from  the  prosecutor,  under  ex- 
actly the  same  circumstances  as  have  been  repeatedly  given  in  evi- 
dence in  the  ring  dropping  cases. '^ 

The  jury  found  the  prisoner  guilty;  but  the  judgment  was  respited, 
and  the  case  reserved  for  the  opinion  of  the  twelve  judges,  on  a  ques- 
tion whether,  as  this  was  a  taking  from  the  person  of  Foreman, 
though  in  the  dwelling  house  of  Brady,  the  prisoner  was  ousted  of  his 
clergy  under  St.  12  Anne,  c.  7. 

1  The  statement  of  facts  is  reprinted  from  2  East,  P.  C.  645. 


EMBEZZLEMENT  185 

Mr.  Justice  AsriURST,  in  February  Session,  1793,  said  that  the 
judges  were  of  opinion  that  the  prisoner  was  not,  under  the  circum- 
stances of  this  case,  deprived  of  his  clergy  by  St.  12  Anne,  c.  7,  and  that 
this  opinion  was  founded  on  the  authority  of  the  case  of  Rex  v.  Camp- 
bell, in  January  Session,  1792;  for  that  to  bring  a  case  within  this 
statute,  the  property  stolen  must  be  under  the  protection  of  the  house, 
and  deposited  therein  for  safe  custody,  as  the  furniture,  plate,  money, 
kept  in  the  house,  and  not  things  immediately  under  the  eye  or  per- 
sonal care  of  some  one  who  happens  to  be  in  the  house. 


II.  Embezzlement ' 


REGINA  V.  ASTON. 
(Warwick  Assizes,  1847.    2  Car.  &  K.  413.) 

Embezzlement.  The  prisoner  was  indicted  for  embezzling  the  sum 
of  6s.,  received  by  him  as  the  servant  of  John  and  Joseph  Fulford. 

The  prosecutors  were  brewers  at  Birmingham,  and  the  prisoner 
was  their  drayman,  and  was  sent  out  daily  with  porter  for  his  mas- 
ters' customers,  and  also  with  a  surplus  quantity,  which  he  had 
authority  to  sell  at  a  certain  fixed  price  only,  viz.,  at  9s.  6d.  a  dozen. 
The  prisoner  sold  a  dozen  of  this  porter  at  6s.  to  Jeremiah  Webb, 
in  the  month  of  July,  1846,  but  did  not  receive  the  money  at  the 
time  of  the  sale,  but  said  he  should  call  for  it  afterwards.  One  of 
the  Messrs.  Fulford  heard  of  the  transaction  from  the  customer, 
and  told  him  to  let  the  prisoner  have  the  money,  but  this  was  un- 
known to  the  prisoner;  and  on  the  20th  of  August  following,  the 
prisoner  having  called  for  the  money,  the  customer,  Webb,  paid  it 
to  him,  and  the  prisoner  having  denied  the  receipt  of  it  to  the  prose- 
cutors, he  was  apprehended. 

Hayes,  for  the  prisoner,  objected  that  the  money  was  not  received 
by  virtue  of  the  prisoner's  employment;  the  prosecutor  having  prov- 
ed that  the  prisoner  had  no  authority  to  sell  at  the  price  charged, 
and  cited  the  case  of  Rex  v.  Snowley,  4  Car.  &  P.  390. 

Patteson,  J.,  after  conferring  with  Parke,  B.,  said  that  he  had 
great  doubts  as  to  the  authority  of  the  case  cited,  and  that  Baron 
Parke  and  himself  also  considered  that,  as  the  master  in  the  pres- 
ent case  had  authorized  the  customer  to  make  payment  to  the  pris- 

8  For  a  discussion  of  principles,  see  Clark  ou  Criminal  Law  (3d  Ed.)  §§  99, 
100. 


186  OFFENSES   AGAINST   PROPERTY 

oner,  the  master  was  bound  by  that  payment,  and  could  not  demand 
more  of  the  customer,  and  that  the  evidence  was  sufficient  to  support 
the  indictment. 
Verdict — Guilty. 


REGINA  V.  CUIXUM. 
(Court  for  Crown  Cases  Reserved,  1873.    L.  R.  2  C.  C.  28.) 

Case  stated  by  the  chairman  of  the  West  Kent  Sessions. 

The  prisoner  was  indicted,  as  servant  to  George  Smeed,  for  stealing 
£2,  the  property  of  his  master. 

The  prisoner  was  employed  by  Mr.  Smeed,  of  Sittingbourne,  Kent, 
as  captain  of  one  of  Mr.  Smeed's  barges. 

The  prisoner's  duty  was  to  take  the  barge  with  the  cargo  to  London, 
and  to  receive  back  such  return  cargo,  and  from  such  persons,  as  his 
master  should  direct.  The  prisoner  had  no  authority  to  select  a  re- 
turn cargo,  or  take  any  other  cargoes  but  those  appointed  for  him. 
The  prisoner  was  entitled,  by  way  of  remuneration  for  his  services,  to 
half  the  earnings  of  the  barge,  after  deducting  half  his  sailing  ex- 
penses. Mr.  Smeed  paid  the  other  half  of  such  expenses.  The  pris- 
oner's whole  time  was  in  Mr.  Smeed's  service.  It  was  the  duty  of  the 
prisoner  to  account  to  Mr.  Smeed's  manager  on  his  return  home  after 
every  voyage.  In  October  last,  by  direction  of  Mr.  Smeed,  the  pris- 
oner took  a  load  of  bricks  to  London.  In  London  he  met  Mr.  Smeed, 
and  asked  if  he  should  not  on  his  return  take  a  load  of  manure  to  Mr. 
Pye,  of  Caxton.  Mr.  Smeed  expressly  forbade  his  taking  the  manure 
to  Mr.  Pye,  and  directed  him  to  return  with  his  barge  empty  to  Bur- 
ham,  and  thence  take  a  cargo  of  mud  to  another  place,  Murston. 
Going  from  London  to  Murston,  he  would  pass  Caxton.  Notwith- 
standing this  prohibition,  the  prisoner  took  a  barge  load  of  manure 
from  London  down  to  Mr.  Pye,  at  Caxton,  and  received  from  Mr. 
Pye's  men  £4  as  the  freight.  It  was  not  proved  that  he  professed  to 
carry  the  manure  or  to  receive  the  freight  for  his  master.  The  serv- 
ant who  paid  the  £4  said  that  he  paid  it  to  the  prisoner  for  the  car- 
riage of  the  manure,  but  that  he  did  not  know  for  whom.  Early  in 
December  the  prisoner  returned  home  to  Sittingbourne,  and  proposed 
to  give  an  account  of  his  voyage  to  Mr.  Smeed's  manager.  The  pris- 
oner stated  that  he  had  taken  the  bricks  to  London,  and  had  returned 
empty  to  Durham,  as  directed  by  Mr.  Smeed,  and  that  there  he  had 
loaded  with  nmd  for  Murston. 

In  answer  to  the  manager's  inquiries,  the  prisoner  stated  that  he  had 
not  brought  back  any  manure  in  the  barge  from  London,  and  he  never 
accounted  for  the  £4  received  from  Mr.  Pye  for  the  freight  for  the 
manure. 


CHEATING    AT   COMMON    LAW 


187 


The  jury  found  the  prisoner  guilty,  as  servant  to  Mr.  Smeed,  of  em- 
bezzHng  £2. 

The  question  was  whether,  on  the  above  facts,  the  prisoner  could  be 
properly  convicted  of  embezzlement. 

BoviLL,  C.  J.  In  the  former  act  relating  to  this  offense  were  the 
words  "by  virtue  of  his  employment."  The  phrase  led  to  some  dififi- 
culty ;  for  example,  such  as  arose  in  Reg.  v.  Snowley,  4  C.  &  P.  390, 
and  Reg.  v.  Harris,  Dears.  Cr.  C.  344.  Therefore  in  the  present  stat- 
ute those  words  were  left  out;  and  section  68  requires  instead  that, 
in  order  to  constitute  the  crime  of  embezzlement  by  a  clerk  or  servant, 
the  "chattel,  money,  or  valuable  security  *  *  *  shall  be  delivered 
to,  or  received,  or  taken  into  possession  by  him,  for  or  in  the  name  or 
on  account  of  his  master  or  employer." 

Those  words  are  essential  to  the  definition  of  the  crime  of  embezzle- 
ment under  that  section.  The  prisoner  here,  contrary  to  his  master's 
order,  used  the  barge  for  his  (the  servant's),  own  purposes,  and  so 
earned  money  which  was  paid  to  him,  not  for  his  master,  but  for  him- 
self ;  and  it  is  expressly  stated  that  there  was  no  proof  that  he  pro- 
fessed to  carry  for  the  master,  and  that  the  hirer  at  the  time  of  pay- 
ing the  money  did  not  know  for  whom  he  paid  it.  The  facts  before 
us  would  seem  more  consistent  with  the  notion  that  the  prisoner  was 
misusing  his  master's  property,  and  so  earning  money  for  hiriiself ,  and 
not  for  his  master.  Under  those  circumstances,  the  money  would  not 
be  received  "for,"  or  "in  the  name  of,"  or  "on  account  of"  his  mas- 
ter, but  for  himself,  in  his  own  name,  and  for  his  own  account.  His 
act,  therefore,  does  not  come  within  the  terms  of  the  statute,  and  the 
conviction  must  be  quashed.* 


III.  Cheating  at  Common  Law  ^" 


STATE  v.  MIDDLETON. 
(Court  of  Appeals  of  South  Carolina,  1S38.    Dud.  275.) 

O'Neall,  J.,^^  delivered  the  opinion  of  the  court. 

The  indictment  charges  the  defendant  in  three  counts,  as  follows, 
to  wit:  (1)  That  she  did  overreach.  (2)  That  she  did  cheat.  (3)  That 
she  did  defraud  one  Alexander  L.  Gregg  of  sundry  articles  of  prop- 

9  Concurring  opinions  of  Bramvvell,  B.,  and  Blackburn  and  Archibald,  JJ., 
are  omitted. 

10  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §§ 
101,  102. 

11  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


188  OFFENSES   AGAINST   PROPERTY 

erty,  by  passing  to  him  a  promissory  note  on  one  L.  G.  Smith  and  John 
Foxworth  for  $10,  pretending  that  it  was  of  that  value,  and  that  the 
makers  were  in  law  liable  to  pay  and  would  pay  the  same,  when  she 
in  fact  knew  that  they  were  not  liable  to  pay  and  would  not  pay  the 
same.    This  is  the  substance  of  the  charges. 

The  first  inquiry  arises,  is  any  offense  at  common  law  charged?  I 
think  it  is  very  clear  there  is  not.  It  is  a  mere  civil  injury,  for  which 
the  party  injured  might  have  his  remedy  by  action  of  deceit.  It  is 
a  mere  false  representation  of  a  thing  to  be  of  value,  which  the  de- 
fendant knew  to  be  valueless.  There  is  in  this  no  offense  against  the 
public.  It  is  in  its  consequences  and  effects  confined  to  the  parties  to 
the  transaction,  and  thus  at  once  shows  that  no  prosecution  at  com- 
mon law  can  be  sustained.  The  definition  of  a  cheat  at  common  law, 
given  by  Russell,  in  his  second  volume  (139),  the  fraudulent  obtain- 
ing of  property  of  another,  by  any  deceitful  and  illegal  practice  or 
token  (short  of  felony)  which  affects  or  may  affect  the  public,  seems 
to  give,  in  general  terms,  the  most  proper  notion  of  the  offense  which 
I  have  been  able  to  meet  with.  It  has  the  support  of  the  case  of  Rex 
V.  Wheatly,  2  Burr.  1125,  in  which  the  defendant  was  indicted  for 
selling  16  gallons  of  amber,  when  it  had  been  represented  by  him  at 
18  gallons,  and  sold  accordingly;  the  defendant  well  knowing  that  the 
true  quantity  was  16  gallons.  It  was  held  that  this  was  no  offense, 
and  that  the  judgment  must  be  arrested.  In  that  case  Lord  Mansfield 
stated  the  rule  to  be  that  "the  offense  that  is  indictable  must  be  such 
a  one  as  affects  the  public — as  if  a  man  uses  false  weights  and  meas- 
ures, and  sells  by  them  to  all  or  many  of  his  customers,  or  uses  them 
in  the  general  course  of  his  dealings;  so  if  a  man  defrauds  another 
under  false  tokens.  For  these  are  deceptions  that  common  care  and 
prudence  cannot  guard  against."     *     *     * 

It  is  therefore  now  necessary,  in  this  connection,  to  inquire  what  is 
a  false  token.  It  is  somewhat  difficult  to  define  with  precision,  or 
rather  to  describe,  a  false  token  in  all  cases.  Taking  the  preamble  of 
the  statute  as  our  guide,  we  would  say  it  must  be  something  false,  and 
purporting  to  come  from  one  not  the  bearer,  and  having  in  itself  some 
private  mark  or  sign,  calculated  to  induce  the  belief  that  it  is  real,  and 
thus  to  cause  the  person  to  whom  it  is  delivered  to  part  with  his  money 
or  goods  to  the  bearer  or  person  delivering  it.  On  looking  into  2  Rus- 
sell, 1384,  I  find  the  definition  which  I  have  given  is  substantially  that 
which  he  approves.  This  would  be  enough  for  this  part  of  the  case, 
for  it  is  manifest  that  the  note  set  out  in  the  indictment  could  not  be 
a  privy  false  token,  according  to  the  definition  or  description  which 
has  been  given.  But  it  may  be  well  here  to  notice  what  is  meant  by 
a  false  token  at  common  law ;  for  it  will,  perhaps,  aid  us  in  the  view 
which  we  may  have  to  take  of  this  case  under  the  act  of  1791.  It 
seems  to  me  that  it  is  anything  which  has  the  semblance  of  public  au- 
thority, as  false  weights,  measures,  seals,  and  marks  of  produce  and 


CHEATING    BY   FALSE    PRETENSES  189 

manufactures,  false  dice,  marked  cards,  and  things  of  a  similar  kind, 
false  and  deceptive,  used  in  unlawful  games.  2  Russ.  on  Crimes,  1368. 
It  is  true,  in  looking  into  the  books,  we  find  many  cases  of  indictment 
in  which  fraud  is  an  essential  requisite,  as  in  cases  of  common  cheat, 
forgery,  and  conspiracy ;  and  some  confusion  has  arisen  from  such 
cases  being  often  spoken  of  under  the  general  head  of  cheats  at  com- 
mon law,  and  therefore  mingled  with  the  offense  of  cheating  or  swin- 
dling by  false  tokens.  But  each  of  them  constitutes  an  independent 
and  distinct  offense.     *     *     * 

The  motion  in  arrest  of  judgment  is  granted. 


IV.  Cheating  by  False  Pretenses 


19 


REGINA  V.  ARDLEY. 
(Court  for  Crown  Cases  Reserved,  1871.    L.  R.  1  C.  C.  301.) 

Case  stated  by  the  Chairman  of  Quarter  Sessions  for  the  County 
Palatine  of  Durham. 

Indictment  for  obtaining  £5  and  an  Albert  chain  of  the  value  of 
7s.  6d.  by  false  pretenses. 

The  material  facts  were  as  follows : 

The  prisoner  went  into  the  shop  of  the  prosecutor,  who  was  a  watch- 
maker and  jeweler,  and  stated  that  he  was  a  draper,  and  was  £5  short 
of  the  money  required  to  make  up  a  bill,  and  asked  the  prosecutor  to 
buy  an  Albert  chain  which  he  (the  prisoner)  was  then  wearing.  The 
prisoner  said:  "It  is  15-carat  fine  gold,  and  you  will  see  it  stamped 
on  every  link.  It  was  made  for  me,  and  I  paid  nine  guineas  for  it. 
The  maker  told  me  it  was  worth  £5  to  sell  as  old  gold."  The  prose- 
cutor bought  the  chain,  relying,  as  he  said,  on  the  prisoner's  statement, 
but  also  examining  the  chain,  and  paid  £5  for  it,  and  gave  also  to  the 
prisoner  in  part  payment  a  gold  Albert  chain  valued  at  7s.  6d.  The 
prisoner's  chain  was  marked  "15  ct."  on  every  link,  and  in  a  very  short 
time  afterwards  he  (the  prisoner)  was  apprehended,  and  then  wore 
another  Albert  chain  of  a  character  similar  to  that  sold  to  the  prose- 
cutor; this  also  being  marked  "15  ct."  on  every  link.  It  was  proved 
that  "15  ct."  was  a  hallmark  used  in  certain  tpwns  in  England,  and 
placed  on  articles  made  of  gold  of  that  quality,  and  that  chains  when 
assayed  are  generally  found  to  be  one  grain  less  than  the  mark,  ex- 

12  For  a  discussion  of  principles,  see  Clarlc  on  Criminal  Law  (3d  Ed.)  §§ 
103,  104. 


190  OFFENSES   AGAINST   PROPERTY 

ceptionally  two  grains.  The  chain  bought  by  the  prosecutor  was  as- 
sayed, and  found  to  be  of  a  quaHty  a  trifle  better  than  6-carat  gold, 
and  of  the  value  in  gold  of  £2.  2s.  9d.  It  was  proved  that,  had  it 
been  15-carat  gold,  it  would  have  been  worth  £5.  10s.  Adding  the 
charge  for  what  is  called  "fashion"  or  "make,"  and  the  price  of  a 
locket  attached,  the  chain  bought  by  the  prosecutor  would  be  sold  for 
£3.  Os.  3d. ;  but,  had  it  been  15-carat,  it  would  have  been  sold  for 
£9.  There  were  no  drapery  goods  or  anything  connected  with  such 
trade  found  on  the  prisoner ;  but,  when  arrested,  he  had  in  his  pos- 
session a  license  to  sell  plate,  two  watches,  two  white-metal  watch 
guards;  and  the  chain  obtained  from  the  prosecutor. 

The  chairman  was  asked  by  the  counsel  for  the  prisoner  to  stop 
the  case,  on  the  authority  of  Reg.  v.  Bryan,  Dears.  &  B.  C.  C.  265,  but 
decHned  to  do  so,  and  left  the  case  to  the  jury,  who  found  the  prisoner 
guilty,  and  said  they  found  that  the  prisoner  knew  that  he  was  falsely 
representing  the  quality  of  the  chain  as  15-carat  gold.     *     *     * 

BoviLL,  C.  J.  The  question  which  we  have  to  consider  in  this  case 
is  whether  there  was  evidence  to  go  to  the  jury  on  which  they  could 
find  the  prisoner  guilty  of  obtaining  money  under  false  pretenses.  I 
think  there  clearly  was  evidence,  and  that  it  would  have  been  quite 
impossible  for  the  learned  chairman  with  any  propriety  to  stop  the 
case.  There  were,  in  addition  to  the  representations  as  to  the  quality 
of  the  gold,  distinct  statements  of  matters  of  fact,  and  there  was  evi- 
dence of  the  falsehoods  of  these  statements.  The  prisoner  stated  that 
he  was  a  draper,  and  was  £5  short  of  the  money  required  to  make  up 
a  bill.  But  there  were  no  drapery  goods,  nor  anything  connected  with 
such  trade,  found  on  the  prisoner ;  but,  when  arrested,  he  had  in  his 
possession  a  license  to  sell  plate,  two  watches,  two  white-metal  watch 
guards,  and  the  chain  obtained  from  the  prisoner,  and  he  wore  an- 
other Albert  chain  of  a  character  similar  to  that  sold  to  the  prosecutor, 
this  also  being  marked  1.5-carat  gold  on  every  link.  Looking,  there- 
fore, at  the  whole  of  the  evidence,  there  is  sufficient  ground  on  which 
the  finding  of  the  jury  may  be  supported  and  the  conviction  sustained. 

But  the  jury  have  further  found  that  the  prisoner,  when  he  repre- 
sented the  chain  to  be  15-carat  gold,  knew  this  representation  to  be 
false.  And  the  question  whether  the  conviction  can  be  supported  upon 
that  finding  alone  stands  upon  a  somewhat  different  footing.  The 
cases  have  drawn  nice  distinctions  between  matters  of  fact  and  mat- 
ters of  opinion,  statements  of  specific  facts  and  mere  exaggerated 
praise.  It  is  difficult  for  us,  sitting  here  as  a  court,  to  determine 
conclusively  what  is  fact  and  what  is  opinion,  what  is  a  specific  state- 
ment and  what  exaggerated  praise.  These  are  questions  for  the  jury 
to  decide.  And  the  prisoner  has  this  additional  security,  that  the  jury 
have  to  consider  not  only  whether  the  statements  made  are  statements 
of  fact,  but  also  whether  they  are  made  with  the  intention  to  defraud. 

The  case  which  has  been  most  pressed  upon  us  is  Reg.  v.  Bryan, 


CHEATING    BY   FALSE    PRETENSES  191 

Dears.  &  B.  C.  C.  265.  The  representation  in  that  case  was  that  cer- 
tain plated  spoons  were  "equal  to  Elkington's  A."  Prima  facie  that 
representation  would  seem  to  be  a  mere  matter  of  opinion,  and  the 
court  held  that  it  was  not  sufficient  to  support  the  conviction.  But 
many  of  the  judges  expressed  the  opinion  that  there  might,  well  be 
cases  in  which  misrepresentations,  though  as  to  cjuality,  would  be 
within  the  statute.  Cockburn,  C.  J.,  says:  "If  the  person  had  rep- 
resented these  articles  as  being  of  Elkington's  manufacture,  when  in 
point  of  fact  they  were  not,  and  he  knew  it,  that  would  be  an  entirely 
different  thing."  Pollock,  C.  B.,  says :  "I  think  if  a  tradesman  or  a 
merchant  were  to  concoct  an  article  of  merchandise  expressly  for  the 
purpose  of  deceit,  and  were  to  sell  it  as  and  for  something  very  dif- 
ferent, even  in  quality,  from  what  it  was,  the  statute  would  apply." 
It  is  plain  that  these  learned  judges  considered  that  a  specific  repre- 
sentation of  quality,  if  known  to  be  false,  would  be  within  the  stat- 
ute. Coleridge,  J.,  expressly  concurs  in  the  observations  of  Pollock, 
C.  B.  Erie,  J.,  at  the  close  of  his  judgment,  says:  "No  doubt  it  is 
difficult  to  draw  the  line  between  the  substance  of  the  contract  and 
the  praise  of  an  article  in  respect  of  a  matter  of  opinion.  Still  it  must 
be  done,  and  the  present  case  appears  to  me  not  to  support  a  convic- 
tion, upon  the  ground  that  there  is  no  affirmation  of  a  definite  triable 
fact  in  saying  the  goods  were  equal  to  Elkington's  A,  but  the  affirma- 
tion is  of  what  is  mere  matter  of  opinion,  and  falls  within  the  cate- 
gory of  untrue  praise  in  the  course  of  a  contract  of  sale,  where  the 
vendor  has  in  substance  the  article  contracted  for,  namely,  plated 
spoons."  Crompton,  J.,  also  considered  that  the  statute  applies  "when 
the  thing  sold  is  of  an  entirely  different  description  from  what  it  is 
represented  to  be."  Willes,  J.,  who  dissented  from  the  judgment  of 
the  court,  goes  the  whole  length  of  saying  that  a  representation  as  to 
quality,  if  known  to  be  false,  is  enough  to  support  a  conviction.  And 
Bramwell,  B.,  leans  to  the  same  opinion. 

Applying  these  observations  to  the  present  case,  the  statement  here 
made  is  not  in  form  an  expression  of  opinion  or  mere  praise.  It  is  a 
distinct  statement,  accompanied  by  other  circumstances,  that  the  chain 
was  15-carat  gold.  That  statement  was  untrue,  w^as  known  to  be  un- 
true, and  was  made  with  intent  to  defraud.  How  does  that  differ 
from  the  case  of  a  man  who  makes  a  chain  of  one  material  and  fraud- 
ulently represents  it  to  be  of  another?  Therefore,  whether  we  look 
at  the  whole  of  the  evidence,  or  only  at  that  which  goes  to  show  the 
quality  of  the  chain,  the  conviction  is  good.  The  case  differs  from 
Reg.  V.  Bryan,  Dears.  &  B.  C.  C.  265,  because  here  there  was  a  state- 
ment as  to  a  specific  fact  within  the  actual  knowledge  of  the  prisoner, 
namely,  the  proportion  of  pure  gold  in  the  chain. 

Conviction  affirmed. ^^ 

13  The  concurring  opinions  of  Willes  and  Byles,  JJ.,  and  Cbannell  and 
Pigott,  BB.,  are  omitted. 


11)2  OFFENSES   AGAINST  PROPERTY 

REGINA  V.  JONES. 
(Court  for  Crown  Cases  Reserved,  1S97.     [1S9S]  1  Q.  B.  119.) 

The  judgment  of  the  court  (Lord  RussELL  of  Killowen,  C.  J., 
Wright,  Ke:nnedy,  Darling,  and  Channull,  JJ.)  was  delivered  by 

Lord  Russell  of  Killowen,  C.  J.^*  This  case  was  reserved  for  our 
consideration  by  the  Recorder  of  Worcester.  The  defendant  was 
indicted  in  two  counts.  In  the  first  he  was  charged  under  the  lar- 
ceny act  of  1861,  with  obtaining  goods  by  false  pretenses.     *     *     * 

The  facts  were  shortly  these :  The  prosecutor  kept  an  eating  house, 
and  on  June  20th  the  defendant  went  in  and  asked  for  some  soup. 
He  was  told  that  there  was  none  ready,  and  thereupon  asked  for 
some  cold  beef.  He  was  told  that  there  was  none,  but  that  he  could 
have  some  cold  lamb  and  salad;  and  this  he  accordingly  ordered. 
He  then  ordered  half  a  pint  of  sherry,  and  went  upstairs  to  have  his 
meal.  While  there  he  rang  the  bell,  and  ordered  another  half  pint 
of  sherry.  Subsequently  he  again  rang  the  bell,  and  asked  what  there 
was  to  pay,  and,  upon  being  told  four  shillings,  said  that  he  had  no 
means  of  paying,  that  he  had  no  money,  and  had  (as  was  the  fact) 
only  a  halfpenny  upon  him.  Such  was  the  state  of  the  facts.  All 
that  the  defendant  did  was  to  go  into  an  eating  house,  order  food 
and  refreshment,  and  eat,  but  not  pay  for  it.  No  question  was  put  to 
him,  and  no  inquiry  was  made  of  him,  by  the  prosecutor  as  to  his 
means ;  nor  was  any  statement  made  by  him  whether  he  had  means 
to  pay.  The  question  is  whether  this  can  be  regarded  as  a  state  of 
things  in  which  a  jury  would  be  justified  in  finding  that  the  defendant 
obtained  consumable  articles  by  false  pretenses.  We  do  not  desire 
to  say  anything  which  can  weaken  the  authority  of  the  decisions 
which  say  that  there  can  be  a  false  pretense  by  conduct ;  for  example, 
the  case  of  Rex  v.  Barnard,  7  C.  &  P.  784,  where  a  cap  and  gown 
were  used  by  a  man  who  had  no  right  to  wear  them,  in  order  to  con- 
vey the  notion  that  he  was  a  member  of  the  University.  Nor  do  we  in 
any  way  dispute  the  authority  of  another  class  of  cases ;  that  is,  where 
a  man  gives  a  check  on  a  iDank  where  he  either  has  no  account  or 
has  not  sufficient  means  to  meet  the  check,  and  must  have  known 
that  he  had  not  sufficient  means.  In  the  present  case  the  defendant 
did  nothing  beyond  what  I  have  already  stated.  No  inquiry  was 
made  of  him,  and  no  statement  was  made  by  him.  Under  the  cir- 
cumstances, we  do  not  think  that  the  case  could  properly  be  left  to 
the  jury  on  the  first  count.  There  was  no  evidence  that  the  defendant 
had  obtained  these  articles  by  false  pretenses.     *     *     * 

1*  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


CHEATING    BT   FALSE   PRETENSES  193 

REGINA  V.  GARDNER. 
(Court  for  Crown  Cases  Reserved,  1S56.     Dears.  &  B.  40.) 

The  evidence  on  the  part  of  the  prosecution,  as  far  as  is  material 
for  the  purpose  of  this  case,  was  that  on  the  13th  day  of  November 
last  the  defendant,  wearing  the  dress  of  a  naval  officer,  engaged  a 
lodging  of  Ellen  Henrietta  Brunsden  (the  prosecutrix)  at  the  rate 
of  10  shillings  per  week;  that  on  the  17th  day  of  November  the- de- 
fendant expressed  himself  to  prosecutrix  as  being  comfortable,  and 
that  he  should  be  likely  to  remain  some  time,  and  stated  that  he  was 
paymaster  of  the  Duke  of  Wellington,  and  his  name  was  De  Lancy; 
that  the  defendant  continued  a  lodger  till  the  25th  of  November,  and 
then  expressed  a  wish  to  become  a  boarder,  and  an  arrangement  waS' 
accordingly  entered  into  that  he  should  become  a  boarder  at  a  guinea 
a  week ;  that  the  prosecutrix  supplied  the  defendant  with  board,  con- 
sisting of  cooked  meat,  tea,  sugar,  bread,  butter,  cheese,  and  beer,  for 
the  six  days  following,  but  the  defendant  did  not  pay  her  anything  for 
the  lodging  or  board.     *     *     * 

Ribton,  for  the  prisoner.  The  conviction  was  wrong.  It  is  im- 
portant to  observe  the  dates.  When  the  false  statement  was  made, 
neither  money,  chattel,  nor  valuable  security  was  obtained  by  it;  and 
obtaining  lodging  by  a  false  pretense  is  not  an  offense  within  the  stat- 
ute. On  the  25th  November,  when  the  contract  to  board  was  obtain- 
ed, no  false  pretense  was  made.'^ 

Coleridge,  J.  Would  it  not  be  a  question  for  the  jury  whether 
there  was  not  a  continuing  false  pretense? 

Ribton.  To  obtain  a  contract  by  a  false  pretense  is  not  within  the 
act.  It  is  not  obtaining  goods.  Here,  if  anything  besides  the  lodging 
was  obtained  by  the  false  pretense,  it  was  not  food,  but  simply  a  new 
contract  to  supply  board,  and  that  would  not  be  within  the  statute. 
The  board  might  have  been  supplied,  not  in  consequence  of  the  false 
pretense  made  when  the  contract  for  the  lodging  was  obtained,  but  in 
consequence  of  the  prisoner's  manners  and  conduct  after  that  time, 
and  whilst  he  was  a  lodger. 

Coleridge,  J.  Yes ;  but  your  point  is  that  there  was  no  evidence 
to  go  to  the  jury,  even  supposing  the  interval  between  the  false  pre- 
tense and  the  contract  had  only  been  an  hour. 

Ribton.  It  is  quite  clear  that  to  obtain  lodging  alone  would  not  be 
within  the  statute.  Here  the  contract  is  for  board  and  lodging  united, 
and  it  is  doubtful  whether  in  any  case  obtaining  board  and  lodging 
would  be  within  the  statute.  It  would  always  be  difficult  to  separate 
the  two,  so  as  to  show  that  the  articles  of  food  were  obtained  by  means 
of  the  false  pretense ;   but  here,  at  all  events,  the  evidence  fails  alto- 

15  The  statement  of  facts  is  abridged. 
MiKELL  Cas.Cb.L. — 13 


194  OFFENSES   AGAINST   PROPERTY 

gather  to  connect  the  obtaining  of  the  food  with  the  false  pretense. 

Horn,  for  the  Crown.  It  is  indisputable  law  that  the  intervention 
of  a  contract  is  no  answer  to  a  charge  of  obtaining  goods  by  false 
pretenses,  if  the  contract  be  part  of  the  fraud.  Here  the  prisoner  has 
obtained  goods  by  means  of  his  false  pretenses,  and  the  fact  that  the 
contract  was  to  pay  for  the  board  and  lodging  together  does  not  make 
it  less  an  obtaining  of  goods.     *     *     * 

Jervis,  C.  J.  The  difficulty  in  the  case  of  contracts  is,  where  the 
party  deceived  gets  not  the  consideration  which  he  expects,  but  some- 
thing like  it. 

Horn.  In  this  case  the  false  pretense  is  clearly  proved.  It  was  a 
continuing  pretense,  and  the  prosecutrix,  acting  upon  it,  was  eventual- 
ly induced  to  supply  the  prisoner  with  board,  as  well  as  lodging.  It  is 
objected  that  lodging  is  not  within  the  statute.  Land  is  not  within 
the  statute;  but  suppose,  by  a  false  pretense,  I  get  an  estate  and  a 
purse  of  gold?  The  articles  of  food  which  the  prisoner  obtained  were 
chattels  within  the  meaning  of  the  statute;  and  the  fact  that  the 
prisoner  gained  lodging  as  well  as  board  cannot  make  any  difference. 
The  question  whether  the  food  was  obtained  by  the  false  pretense  was 
for  the  jury,  and  they  have  found  that  it  was. 

Ribton  replied. 

Je;rvis,  C.  J.  In  this  case,  which  was  argued  before  us  on  Saturday 
last,  the  court  took  time  to  consider,  principally  with  a  view  of  first 
taking  into  consideration  the  cases  of  Regina  v.  Roebuck  and  Regina 
V.  Burgon,  which  have  just  been  disposed  of.  It  was  an  indictment 
for  obtaining  goods  under  false  pretenses,  the  circumstances  being 
that  the  prisoner  represented  himself  to  be  the  paymaster  of  the  Duke 
of  Wellington,  of  the  name  of  De  Lancy,  upon  which  he  made  with 
the  prosecutrix  a  contract  for  board  and  lodging  at  the  rate  of  one 
guinea  a  week,  and  he  was  lodged  and  fed  as  the  result  of  the  con- 
tract, in  consequence  of  the  engagement  so  entered  into  upon  that 
which  was  found  to  be  a  false  pretense;  and  the  question  which 
was  submitted  to  us  was  whether  it  was  a  false  pretense  within 
the  statute,  or,  rather,  whether  the  conviction  was  right?  That  we 
have  considered,  and  on  consideration  we  are  of  opinion  that  the  con- 
viction was  not  right,  because  we  think  that  the  supply  of  articles,  as 
it  was  said,  upon  the  contract  made  by  reason  of  the  false  pretense, 
was  too  remotely  the  result  of  the  false  pretense  in  this  particular  in- 
stance to  become  the  subject  of  an  mdictment  for  obtaining  those 
specified  goods  by  false  pretenses.  We  therefore  think  the  convic- 
tion should  be  reversed. 
Conviction  quashed. 


BOBBERY  195 


V.  Robbery  i« 


HUGHES'  AND  WELLINGS'  CASE. 

(Lancaster  Assizes,  1825.     1  Lew.  301.) 

Prisoners  were  indicted  for  robbery.  It  appeared  in  evidence  that 
they,  together  with  others,  their  companions,  hung  around  the  prose- 
cutor's person  in  the  streets  of  Manchester,  and  rifled  him  of  his 
watch  and  money.  It  did  not  appear,  however,  that  any  force  was 
used,  or  any  menace;  but  they  so  surrounded  him  as  to  render  all 
attempt  at  resistance  hazardous,  if  not  vain.  . 

Per  Bayley,  J.  In  order  to  constitute  robbery,  there  must  be  ei- 
ther force  or  menaces.  If  several  persons  so  surround  another  as  to 
take  away  the  power  of  resistance,  this  is  force. 

Prisoners  were  convicted. 


HILL  V.  STATE. 

(Supreme  Court  of  Nebraska,  1S94.    42  Neb.  503,  60  N.  W.  916.) 

Post,  J.^^  *  *  *  Exception  was  taken  also  to  the  following 
instruction:  *  *  *  "You  are  therefore  instructed  in  this  case,  if 
you  believe  from  the  evidence  beyond  any  reasonable  doubt  that,  at 
the  time  of  the  alleged  killing  of  Mattes  Akeson,  the  defendant,  Harry 
Hill,  with  John  Benwell,  had  entered  his  dwelling  house,  armed  with 
a  deadly  weapon  or  weapons,  for  the  purpose  of  intimidating  the  de- 
ceased for  the  furtherance  of  their  purpose  to  steal,  take,  and  carry 
away  by  force  and  violence  the  money  or  any  article  of  personal  prop- 
erty of  the  deceased's  dwelling  house,  and  that  in  the  prosecution  of 
that  purpose  and  design  the  defendants,  or  either  of  them,  shot  the 
deceased,  and  thereby  caused  his  death,  *  *  *  that  such  killing 
would  be  murder  in  the  first  degree." 

There  appears  to  have  been  an  error  or  omission  in  the  transcrib- 
ing of  the  above  instruction,  wherein  the  court  is  made  to  say  that 
the  accused  might  be  convicted  if  he  feloniously  killed  the  deceased 
while  engaged  with  his  codefendant  in  attempting  forcibly  to  take, 
steal,  or  carry  away  "any  article  of  personal  property  of  the  deceased's 
dwelling  house."     But  the  objection  to  the  instruction  is  upon  other 

16  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §§ 
105-107. 

i?  Fart  of  the  opinion  is  omitted. 


196  OFFENSES    AGAINST   PROPERTY 

grounds,  viz.,  that  it  authorizes  a  conviction  provided  the  Jury  should 
find  that  the  defendant  forcibly  entered  the  house  of  the  deceased 
for  the  purpose  of  committing  a  larceny.  Robbery  at  common  law 
was  defined  as  larceny  committed  by  violence  trom  the  person  of 
one  put  in  fear.  2  Bishop,  Criminal  Law,  1156.  By  section  13  of  our 
Criminal  Code  it  is  provided  that  "if  any  person  shall  forcibly  and 
by  violence,  or  by  putting  in  fear,  take  from  the  person  of  another 
any  money  or  personal  property  of  any  value  whatever  with  the  in- 
tent to  rob  or  steal,  every  person  so  offending  shall  be  deemed  guiky 
of  robbery,  and  upon  conviction  thereof  shall  be  imprisoned  ill  the 
penitentiary  not  more  than  fifteen  nor  less  than  three  years."  The 
taking,  according  to  each  definition,  must  be  from  the  person,  since 
the  crime  of  robbery  is  an  offense  as  well  against  the  person  as 
against  property.  It  is,  however,  not  essential  to  a  conviction  for 
the  crime  named  that  the  property  be  taken  from  the  body  of  the 
person  wronged.  It  is  suiificient  if  taken  from  his  personal  presence 
or  personal  protection.  2  Bishop,  Criminal  Law,  1177,  1178;  United 
States  V.  Jones,  3  Wash.  C.  C.  209,  Fed.  Cas.  No.  15,494;  Clements 
V.  State,  84  Ga.  660,  11  S.  E.  505,  20  Am.  St.  Rep.  385 ;  State  v.  Cal- 
houn, 72  Iowa,  432,  34  N.  W.  194,  2  Am.  St.  Rep.  252.  In  the  last- 
named  case,  which  was  under  a  statute  similar  to  ours,  the  prisoner 
was  shown  to  have  bound  the  prosecutrix,  and  by  putting  her  in  fear 
extorted  information  respecting  the  place  where  her  money  and  other 
personal  property  was  kept.  Leaving  her  bound,  he  went  to  the  place 
designated  by  her  in  another  room  of  the  same  house  and  took  the 
property  named  in  the  indictment.  In  the  opinion  the  court,  by  Beck, 
J.,  uses  this  language :  "The  thought  of  the  statute,  as  expressed  in 
the  language,  is  that  the  property  must  be  so  in  the  possession  or 
under  the  control  of  the  individual  robbed  that  violence  or  putting 
in  fear  was  the  means  used  by  the  robber  to  take  it."  And  in  Clem- 
ents V.  State  the  prisoner,  by  threats  of  violence,  detained  the  prose- 
cutor in  an  outhouse  while  a  confederate  entered  his  dwelling,  15 
paces  distant,  and  took  therefrom  the  property  described,  and  the  tak- 
ing was  held  to  be  in  the  presence  of  the  prosecutor,  within  the  mean- 
ing of  the  statute  defining  robbery.  The  taking  of  the  property  of 
the  deceased  from  his  dwelling  under  the  circumstances  indicated  by 
the  instruction  would  have  been  robbery.  It  would  also  have  sus- 
tained a  conviction  for  larceny.  Brown  v.  State,  ZZ  Neb.  354,  50  N. 
W.  154.    The  objection  to  the  instruction  is,  therefore,  without  mer- 

i4-  'K  *  "P 


EECEIVING   STOLEN   GOODS  197 


VI.  Receiving  Stolen   Goods  ^* 


REGINA  V.  WILEY. 

(Court  for  Crown  Cases  Reserved,  1S50.    1  Eng.  Law  &  Dq.  567.) 

Martin,  B.^^  *  *  *  It  appears  that  two  men  stole  some  fowls, 
put  them  into  a  sack,  and  brought  them  into  the  house  of  Wiley's  fa- 
ther, for  the  purpose  of  selling  them  to  Wiley;  that  they  all  three  went 
out  of  the  house  into  the  stable,  the  thieves  carrying  the  sack  and  Wiley 
preceding  them  with  a  candle ;  that  the  stable  door  was  shut ;  and  that 
the  policeman,  on  opening  it,  found  the  sack  on  the  ground  and  three 
men  standing  round  it,  as  if  bargaining.  Upon  this  case  I  am  of  opin- 
ion that  Wiley  never  did  receive  these  articles.  I  entirely  agree  that 
the  question  arises  upon  the  possession.  There  was  no  property  in 
these  fowls,  or  in  any  of  them.  The  men  who  stole  the  fowls  had  them 
in  their  possession,  and  intended  to  hold  them  hostilely  to  Wiley,  and 
never  intended  to  let  him  have  them,  unless  some  bargain  w^ere  made 
between  themselves  and  Wiley  for  the  purchase  of  them.  I  think  that, 
in  the  ordinary  acceptation  of  the  word  "receive,"  Wiley  could  not  be 
said  to  have  received  this  property,  and  that,  therefore,  he  ought  not 
to  have  been  convicted. 

Erle;,  J.  I  am  of  opinon  that  the  conviction  is  right,  and  on  two 
grounds.  The  first  ground  is  because  Wiley  co-operated  with  the 
thieves  in  removing  the  goods  into  the  stable,  which  was  under  Wiley's 
control,  for  the  purpose  of  more  securely  effecting  a  bargain  respect- 
ing them,  Npw,  if  Wiley  had  taken  part  in  the  actual  carrying  of  the 
goods,  there  would  have  been  no  doubt,  I  believe,  in  the  minds  of  many 
of  my  Brothers  but  that  he  would  have  been  rightly  convicted.  But 
he  lighted  a  candle,  and  preceded  the  thieves,  while  they  carried  the 
sack ;  and  I  think  that  in  so  doing  he  co-operated  with  them,  so  as  to 
render  himself  liable  to  be  convicted  as  a  receiver.  I  come  to  this  con- 
clusion on  the  prmciple  of  the  law  that  a  person  who  assists  a  thief  in 
removing  to  a  place  of  safety  goods  which  the  latter  has  already  re- 
moved from  the  owner's  premises  cannot  be  convicted  of  larceny ;  but 
it  seems  to  me  that  the  person  who  so  co-operates  is  a  criminal,  and 
that  the  law  would  reach  him  as  a  receiver.  The  other  ground  on 
which  I  think  that  this  conviction  may  be  sustained  is  that  I  attach  a 

18  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed)  ^^ 
108,  109. 

19  The  statement  of  facts,  parts  of  the  opinions  of  Martin,  B.  and  Earle  and 
Coleridge,  JJ.,  and  the  opinions  of  Talfourd,  Williams,  Cresswell,  Maule, 
and  Patteson,  JJ.,  Piatt,  Alderson,  and  Parke,  BB.,  and  Campbell,  C.  J.,  are 
omitted. 


198  OFFENSES   AGAINST   PROPERTY 

wider  meaning  to  the  word  "receive"  than  has  been  given  to  it  by  some 
of  my  Brothers.  The  rules  respecting  property  which  have  relation  to 
civil  rights  seem  to  me  to  have  no  application  here.  Several  statutes 
have  been  passed  to  render  an  accessory  after  the  fact  more  open  to 
punishment  than  he  was  at  common  law.  I  think  that  the  word  "re- 
ceive," with  respect  to  stolen  goods,  should  be  construed  with  reference 
to  the  word  "harbor,"  applied  to  the  thief.  If  a  man  harbors  the  stolen 
goods,  knowing  them  to  be  stolen,  for  the  purpose  of  aiding  the  thief, 
he  is  liable  under  the  statute  as  a  receiver.  If  he  is  the  owner  of  a 
stable,  and  authorizes  thieves  to  deposit  stolen  property  on  the  premis- 
es, he  would  be  liable  in  like  manner ;  and  it  seems  to  me  that  he  is 
not  the  less  liable  because  the  thieves  remain  there  also.  If  they  bring 
the  property  there  with  his  consent,  he  is,  I  think,  guilty  of  receiving 
it.  The  earlier  statutes  did  not  contemplate  that  there  must  be  any 
bargain  or  transfer  of  the  goods  to  a  man  to  constitute  him  a  receiver. 
In  St.  29  Geo.  II.  c.  30,  it  was  made  an  offense  to  leave  the  window, 
door,  or  shutter  of  any  premises  open  at  night  for  the  purpose  of  of- 
fering a  thief  a  place  of  deposit  for  any  stolen  lead  or  other 
metal.    *    *    * 

On  both  these  grounds  I  am  of  opinion  that  the  conviction  is  right. 

^  +  5^ 

CoIvE;ridge,  J.  I  also  think  that  the  conviction  is  wrong.  *  *  * 
In  my  opinion,  "receiving"  must  import  possession,  actual  or  construc- 
tive. I  cannot  find  either  here.  I  think,  therefore,  that  the  conviction 
is  wrong.  It  is  of  great  importance  that  in  the  administration  of  the 
•criminal  law  we  should  proceed  upon  broad  principles  of  construction, 
intelligible  to  common  understandings. 

Conviction  reversed 


REGINA  v.  WOODWARD. 
(Court  of  Criminal  Appeal,  1862.    9  Cox,  C.  C.  95.) 

Case  reserved  for  the  opinion  of  the  Court  of  Criminal  Appeal.  At 
the  Quarter  Sessions  of  the  Peace  for  the  County  of  Wilts,  held  at 
Marlborough,  on  the  16th  day  of  October,  1861,  before  me,  Sir  John 
Wither  Awdry,  Bart.,  and  others,  my  fellows,  Benjamin  Woodward, 
of  Trowbridge,  in  the  county  of  Wilts,  dealer,  was  found  guilty  of  re- 
ceiving stolen  goods,  knowing  them  to  have  been  stolen,  and  was  there- 
upon sentenced  to  nine  calendar  months'  imprisonment  with  hard  labor, 
and  the  prisoner  now  is  undergoing  his  sentence. 

The  actual  delivery  of  the  stolen  property  was  made  by  the  prin- 
cipal felon  to  the  prisoner's  wife,  in  the  absence  of  the  prisoner,  and 
she  then  paid  6d.  on  account ;  but  the  amount  to  be  paid  was  not  then 
fixed.  Afterwards  the  prisoner  and  the  principal  met  and  agreed  on 
the  price,  and  the  prisoner  paid  the  balance. 


RECEIVING    STOLEN    GOODS  190 

Guilty  knowledge  was  inferred  from  the  general  circumstances  of 
the  case. 

It  was  objected  that  the  guilty  knowledge  must  exist  at  the  time  of 
receiving,  and  that  when  the  wife  received  the  goods  the  guilty  knowl- 
edge could  not  have  come  to  the  prisoner. 

The  court  overruled  this  objection,  and  directed  the  jury  that  until 
the  subsequent  meeting,  when  the  act  of  the  wife  was  adopted  by  the 
prisoner  and  the  price  agreed  upon,  the  receipt  was  not  so  complete  as 
to  exclude  the  effect  of  the  guilty  knowledge. 

If  the  court  shall  be  of  opinion  that  the  circumstances  before  set 
forth  are  sufficient  to  support  a  conviction  against  the  prisoner  for  the 
felonious  receipt,  the  conviction  is  to  stand  confirmed ;  but  if  the  court 
shall  be  of  a  contrary  opinion,  then  the  conviction  is  to  be  quashed.  J. 
W.  Awdry. 

ErlE,  C.  J.  The  argument  of  the  learned  counsel  for  the  prisoner 
has  failed  to  convince  me  that  the  conviction  was  wrong.  It  appears 
that  the  thief  brought  to  the  premises  of  the  prisoner  the  stolen  goods 
and  left  them,  and  that  sixpence  was  paid  on  account  of  them  by  the 
prisoner's  wife ;  but  there  was  nothing  in  the  nature  of  a  complete  re- 
ceipt of  the  goods  until  the  thief  found  the  husband,  and  agreed  with 
him  as  to  the  amount,  and  was  paid  the  balance.  The  receipt  was 
complete  from  the  time  when  the  thief  and  the  husband  agreed.  Till 
then  the  thief  could  have  got  the  goods  back  again  on  payment  of  the 
sixpence.  I  am  of  opinion,  therefore,  that  the  conviction  should  be  af- 
firmed.^** 

Wilde:,  B.  I  read  the  case  as  showing  that  the  wife  received  the 
goods  on  the  part  of  the  prisoner,  her  husband,  and  that  act  of  hers 
was  capable  of  being  ratified  on  the  part  of  the  prisoner.  If  so,  that 
makes  the  first  act  of  receiving  by  the  wife  his  act.  In  the  case  of 
Reg.  V.  Bring  and  Wife,  the  only  statement  was  "that  the  husband 
adopted  his  wife's  receipt,"  and  the  court  thought  the  word  "adopted" 
capable  of  meaning  that  the  husband  passively  consented  to  what  his 
wife  had  done,  and  on  that  ground  quashed  the  conviction.  But  here 
the  prisoner  adopted  his  wife's  receipt  by  settling  and  paying  the 
amount  agreed  on  for  the  stolen  goods, 

Mi:llor,  J.,  concurred. 

Conviction  affirmed. 

2  0  The  concurring  opinions  of  Blackburn  and  Keating,  J  J.,  are  omitted. 


200  OFFENSES  AGAINST  PEOPEKTY 


VII.  Malicious   Mischief  *^  j 


COMMONWEALTH  v.  CRAMER. 

(Court  of  Quarter  Sessions  of  Dauphin  County,  Pa,,  1S70.    2  Pears,  441.) 

By  the:  Court.22  fi-^^  defendant  was  charged,  under  the  154th 
section  of  the  Penal  Code  (P.  L.  1860,  p.  419),  with  having  willfully 
and  maliciously  maimed,  disfigured,  and  wounded  a  steer,  the  proper- 
ty of  Jonas  C.  Brinzer,  and,  having  been  convicted  at  the  last  sessions, 
a  motion  was  made  for  a  new  trial  on  account  of  misdirection  in  the 
charge  of  the  court  and  also  in  arrest  of  judgment.  There  is  no 
ground  whatever  for  arresting  the  judgment,  as  the  indictment  is  good 
on  its  face.  The  only  question,  is  was  it  properly  supported  by  the 
evidence,  and  was  the  jury  rightly  instructed  as  to  the  law  of  the  case? 

It  was  proved  on  the  trial  that  at  the  time  of  the  injury  the  steer  was 
trespassing  on  the  inclosed  grounds  of  the  defendant ;  had  repeatedly 
jumped  into  his  cornfield,  .and  was  destroying  his  corn;  that  he  was 
very  troublesome,  addicted  to  jumping,  and  what  might  be  called  in 
common  parlance  "very  breachy."  The  defendant  shot  him  many 
times  with  a  gun  heavily  loaded  with  shot,  at  one  time  wrapping  up  the 
charge  and  hitting  him  so  severely  that  he  fell  to  his  knees,  but  v/as 
able  to  run  ofif  and  again  jump  the  fence,  which  was  low  and  not  in 
good  order.  The  steer  was  neither  maimed  nor  disfigured,  but  was 
pretty  severely  "wounded"  by  the  shots,  and  greatly  fell  away  in  flesh. 
The  court  instructed  the  jury  that  the  evidence  did  not  bring  the  case 
within  the  statute,  but,  if  he  was  wounded  as  charged  in  the  indict- 
ment, it  was  a  crime  at  common  law,  although  concluding  contra  for- 
mam  statuti.  The  only  question  of  any  difficulty  was  whether  the  act 
must  be  done  out  of  malice  towards  the  owner  or  malice  and  passion 
against  the  animal.  There  was  no  pretense  that  there  was  any  malice 
towards  the  owner  in  this  case,  as  the  parties  were  comparative  stran- 
gers to  each  other  and  lived  many  miles  apart.  The  prosecutor's  cat- 
tle were  pasturing  on  an  adjoining  farm  to  the  defendant. 

It  is  a  little  difficult  to  ascertain  precisely  what  amounts  to  malicious 
mischief  by  the  common  law.  Blackstone,  in  his  Commentaries  (vol- 
ume 4),  says :  "The  act  must  be  done  either  out  of  a  spirit  of  wanton 
cruelty,  or  black  and  diabolical  revenge."  One  reason  why  we  find 
so  little  on  the  subject  in  the  English  writers  on  criminal  jurisprudence 
tendin^^  to  show  what  amounted  to  this  crime  at  common  law  is  that 

21  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  § 
110. 

22  Part  of  the  opinion  is  omitted. 


MALICIOUS   MISCHIEF  201 

almost  every  possible  injury  to  property  was  punished  by  statutes,  and 
the  indictments  have  generally,  and  perhaps  always,  for  the  last  20Q 
years,  been  preferred  under  some  one  of  the  various  acts  of  Parlia- 
ment. It  may  be  conceded  that  in  England  it  is  settled  that  the  offense 
must  be  committed  out  of  malice  towards  the  owner  of  the  injured 
property,  unless,  perhaps,  in  cases  of  great  and  wanton  cruelty  towards 
domestic  animals.  Even  under  their  statutes  it  is  held  that  there  must 
be  malice  towards  the  owner.  The  worst  acts  of  cruelty  committed 
through  passion  against  the  animal  are  not  punished  criminally.  In 
this  state,  and  perhaps  in  many  others,  our  laws  have  been  construed 
differently.  When  our  various  acts  passed  to  protect  property  of  any 
kind  speak  of  malicious  and  willful  injury  thereto,  we  are  justifiable 
in  saying  that  it  applies  to  the  forbidden  act,  whether  done  out  of  mal- 
ice toward  the  owner,  or  through  a  spirit  of  wanton  mischief,  especial- 
ly if  accompanied  with  cruelty.  Where  malice  is  thus  mentioned,  it 
does  not  mean  hatred  or  ill  will,  but  imports  an  evil  disposition  in  gen- 
eral, a  heart  regardless  of  social  duty.  Our  Code  is  full  of  provisions 
protecting  inanimate  objects,  as  well  as  animate,  and  we  hold  that  they 
are  equally  protected  from  wanton  mischief,  or  from  injury  or  de- 
struction out  of  malice  towards  the  owner.  Wharton,  our  best  writer 
on  Criminal  Law  in  this  state,  says,  in  volume  2,  at  page  2002 :  "Mali- 
cious mischief  in  this  country  as  a  common-law  offense  has  received 
a  far  more  extended  interpretation  than  has  been  attached  to  it  in  Eng- 
land." He  defines  it  to  be  "any  malicious  or  mischievous  injury,  either 
to  the  rights  of  another  or  those  of  the  public  in  general."  In  Com- 
monwealth V.  Walden,  3  Cush.  (Mass.)  558,  it  is  said:  "The  jury  must 
be  satisfied  that  the  injury  was  done  either  out  of  a  spirit  of  wanton 
cruelty  or  of  wicked  revenge."  In  Massachusetts  the  distinction  seems 
to  be  taken  between  injuries  done  to  animate  and  inanimate  objects. 
In  the  latter  there  must  be  malice  towards  the  owner,  whilst  in  the  for- 
mer wanton  cruelty  is  criminally  punishable.  It  was  held  in  that  state 
to  be  indictable  to  poison  cattle.  Commonwealth  v.  Leach,  1  Mass.  59. 
The  subject  has  undergone  considerable  examination  in  the  state  of 
New  York.  In  People  v.  Smith,  5  Cow.  (N.  Y.)  258,  "it  is  held  to  be 
indictable  to  maliciously,  wickedly,  and  willfully  kill  a  cow."  The 
court  speaks  of  the  act  being  one  of  wanton  cruelty,  and  that  it  cannot 
be  expected  that  a  mind  so  depraved  will  be  restrained  by  a  mere  lia- 
bility to  pay  damages.  The  perpetrator  may  be  insolvent,  and  thus 
gratify  his  malice  with  impunity,  if  there  is  no  redress  other  than  by 
civil  action.  The  object  is  to  protect  the  citizen  in  his  right  by  restrain- 
ing and  punishing  the  wrongdoer.  Such  acts  discover  a  degree  of  mor- 
al turpitude  dangerous  to  society,  and  for  its  security  ought  to  be  pun- 
ishable criminally.  It  is  an  evil  example  of  the  most  pernicious 
tendency,  inasmuch  as  the  act  is  an  outrage  upon  the  principles  and 
feelings  of  humanity. 


202  OFFENSES    AGAINST   PROPERTY 

In  Loomis  v.  Edgerton,  19  Wend.  (N.  Y.)  419,  it  was  held  to  be  in- 
dictable to  willfully,  wickedly,  and  secretly  break  up  a  cutter,  and  Peo- 
ple V.  Smith,  5  Cow.  (N.  Y.)  258,  is  cited  with  approbation.  The  judge, 
after  stating  that  in  many  courts  it  had  been  held  that  such  offenses 
were  not  indictable,  says  he  "is  happy  to  find  that  the  weight  of  author- 
ity is  the  other  way."  "To  say  that  it  was  not  so  would  be  a  sad  ex- 
ception to  the  general  wisdom  of  the  common  law."  At  an  after  time 
the  courts  of  that  state  decided  in  Kilpatrick  v.  People,  5  Denio  (N. 
Y.)  277,  that  it  was  not  indictable  at  common  law  to  maliciously  break 
the  windows  of  another's  dwelling.  If  done  secretly,  it  might  be  other- 
wise. At  the  same  time  the  court  considers  that  a  criminal  prosecution 
might  be  sustained  for  maliciously  killing  or  wounding  domestic  ani- 
mals, as  that  shows  depravity  of  mind  and  cruelty  of  disposition,  and 
the  cases  in  1  Dall.  (Pa.)  335,  1  L.  Ed.  163,  Respublica  v.  Teischer,  and 
5  Bin.  (Pa.)  277,  Commonwealth  v.  Taylor,  are  spoken  of  with  appro- 
bation, as  also  that  already  cited  from  5  Cow. 

In  State  v.  Briggs,  1  Aikens  (Vt.)  226,  an  indictment  was  sustained 
for  cutting,  maiming,  and  destroying  colts.  The  judge  says:  "When 
the  most  wanton  cruelty  to  the  beast  is  the  grievance,  we  may  pass  by 
the  civil  injury  and  treat  the  deed  as  a  misdemeanor  at  common  law. 
With  force  and  arms  to  injure  the  property  of  another  is  a  civil  in- 
jury, for  which  the  owner  of  the  property  may  have  his  action  of  tres- 
pass. But  the  wounding  and  torturing  a  living  animal,  not  only  with 
force  and  arms,  but  with  all  the  malicious  and  wicked  motives  and  in- 
tentions set  forth  in  this  indictment,  is  a  misdemeanor  to  be  prosecuted 
by  the  judges."  This  case  appears  afterwards  to  have  been  disregard- 
ed and  overruled  in  that  state,  but  in  our  opinion  is  good  law  and  sound 
morals. 

In  Pennsylvania  we  have  perhaps  gone  further  than  in  any  other 
state  in  punishing  malicious  mischief.  As  early  as  1788,  in  Teischer's 
Case,  1  Dall.  335,  1  L.  Ed.  163,  it  was  held  indictable  to  maliciously, 
willfully,  and  wickedly  kill  a  horse,  and  McKean,  C.  J.,  says  whatever 
amounts  to  a  public  wrong  may  be  made  the  subject  of  an  indict- 
ment. The  poisoning  of  chickens,  cheating  with  false  dice,  fraudulent- 
ly tearing  a  promissory  note,  and  many  other  offenses  of  a  similar  de- 
scription have  heretofore  been  indicted.  Breaking  windows  by  throw- 
ing stones  at  them,  embezzling  public  money,  so  for  maliciously  killing 
a  dog,  for  writing  threatening  letters  to  obtain  money.  United  States 
V.  Ravara,  2  Dall.  (Pa.)  297,  Fed.  Cas.  No.  16,122,  1  L.  Ed.  388;  gir- 
dling a  tree  growing  on  public  ground.  Commonwealth  v.  Eckert,  2 
Browne  (Pa.)  249 ;  so  to  enter  the  house  of  another,  make  a  great 
noise,  and  disturb  and  alarm  the  family  (5  Bin.) ;  to  be  guilty  of  wan- 
ton cruelty  to  animals  in  general.  United  States  v.  Logan,  2  Cranch,  C. 
C.  259,  Fed.  Cas.  No.  15,623;  to  put  co witch  on  a  towel  to  injure  a 
person  about  to  use  it,  People  v.  Blake,  1  Wheeler,  Cr.  Cas.  (N.  Y.) 
490;  to  cut  off  the  hair  from  the  mane  or  tail  of  a  horse,  Boyd  v.  State, 


FORGERY 


203 


2  Humph.  (Tenn.)  39 ;  to  discharge  a  gun  with  intent  to  disturb  a  sick 
person,  Commonwealth  v.  Wing,  9  Pick.  (Mass.)  1.  19  Am.  Dec.  347; 
so  to  destroy  a  Hue  tree  or  other  landmark,  or  to  set  fire  to  a  number  of 
barrels  of  tar  belonging  to  another;  so  to  cast  the  carcass  of  a  dead 
animal  into  a  well  in  daily  use,  State  v.  Buckman,  8  N.  H.  203,  29  Am. 
Dec.  646.  Most  of  these  cases  are  cited  in  2  Wharton's  Cr.  Law,  p. 
2003.    *    *    * 

In  the  case  before  us  the  owner  of  the  cornfield  could  have  had 
ample  redress  for  the  injury  done  by  the  steer,  had  he  proceeded  un- 
der the  law  relating  to  estrays  or  by  an  action  against  the  owner.  In- 
stead of  pursuing  a  legal  remedy,  he  resorted  to  acts  of  barbarity  which 
are  themselves  evidence  of  malice.  Although  we  may,  in  pronouncing 
sentence,  take  into  consideration  the  provocation  to  anger  by  the  tres- 
passes of  the  animal,  yet  we  cannot  avoid  imposing  some  punishment 
on  the  defendant  for  his  violation  of  the  criminal  law.    *    *    * 


VIII.  Forgery" 
1.  The  Making  of  the  Instrument 


^ 


OMMON WEALTH  v.  BALDWIN. 


(Supreme  Judicial  Court  of  Massachusetts,  1S5S.     11  Gray,  197, 

71  Am.  Dec.  703.) 

Thomas,  J.-*  This  is  an  indictment  for  the  torgery  of  a  promissory 
note.  The  indictment  alleges  that  the  defendant,  at  Worcester,  in  this 
county,  "feloniously  did  falsely  make,  forge,  and  counterfeit  a  certain 
false,  forged,  and  counterfeit  promissory  note,  which  false,  forged, 
and  counterfeit  promissory  note  is  of  the  following  tenor,  that  is  to 
say: 
"  '$457.88.  Worcester,  Aug.  2L  1856. 

"  'Four  months  after  date  we  promise  to  pay  to  the  order  of  Russell 
Phelps  four  hundred  fifty-seven  dollars  ^Vioo,  payable  at  Exchange 
Bank,  Boston,  value  received.  Schouler,  Baldwin  &  Co.' 

with  intent  thereby  then  and  there  to  injure  and  defraud  said  Russell 
Phelps." 

The  circumstances  under  which  the  note  was  given  are  thus  stated 
in  the  bill  of  exceptions:    Russell  Phelps  testified  that  the  note  was 

2  3  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §8 
111-113. 

24  Part  of  the  opinion  is  omitted. 


204  OFFENSES   AGAINST   PROPERTY 

executed  and  delivered  by  the  defendant  to  him  at  the  Bay  State 
House,  in  Worcester,  on  the  21st  of  August,  1856,  for  a  note  of  equal 
amount,  which  he  held,  signed  by  the  defendant  in  his  individual  name, 
and  which  was  overdue,  and  that  in  reply  to  the  inquiry  who  were  the 
members  of  the  firm  of  Schouler,  Baldwin  &  Co.  the  defendant  said, 
"Henry  W.  Baldwin  and  William  Schouler,  of  Columbus."  He  fur- 
ther said  that  no  person  was  represented  by  the  words  "&  Co."  It 
appeared  in  evidence  that  the  note  signed  Schouler,  Baldwin  &  Co. 
was  never  negotiated  by  Russell  Phelps.  The  government  offered 
evidence  which  tended  to  prove  either  that  there  never  had  been  any 
partnership  between  Schouler  and  Baldwin,  the  defendant,  or,  if  there 
ever  had  been  a  partnership,  that  it  was  dissolved  in  the  month  of 
July,  1856. 

The  question  raised  at  the  trial  and  discussed  here  is  whether  the 
execution  and  delivery  of  the  note,  under  the  facts  stated,  and  with 
intent  to  defraud,  was  a  forgery. 

It  would  be  difficult,  perhaps,  by  a  single  definition  of  the  crime  of 
forgery,  to  include  all  possible  cases.  Forgery,  speaking  in  general 
terms,  is  the  false  making  or  material  alteration  of  or  addition  to  a 
written  instrument  for  the  purpose  of  deceit  and  fraud.  It  may  be 
the  making  of  a  false  writing  purporting  to  be  that  of  another.  It 
may  be  the  alteration  in  some  material  particular  of  a  genuine^  instru- 
ment by  a  change  of  its  words  or  figures.  It  may  be  the  addition  of 
some  material  provision  to  an  instrument  otherwise  genuine.  It  may 
be  the  appending  of  a  genuine  signature  of  another  to  an  instrument 
for  which  it  was  not  intended.  The  false  writing,  alleged  to  have 
been  made,  may  purport  to  be  the  instrument  of  a  person  or  firm  ex- 
isting, or  of  a  fictitious  person  or  firm.  It  may  be  even  in  the  name 
of  the  prisoner,  if  it  purports  to  be,  and  is  desired  to  be  received  as, 
the  instrument  of  a  third  person  having  the  same  name. 

As  a  general  rule,  however,  to  constitute  forgery,  the  writing  falsely 
made  must  purport  to  be  the  writing  of  another  party  than  the  per- 
son making  it.  The  mere  false  statement  or  implication  of  a  fact, 
not  having  reference  to  the  person  by  whom  the  instrument  is  ex- 
ecuted, will  not  constitute  the  crime. 

An  exception  is  stated  to  this  last  rule  by  Coke,  in  3  Inst.  169, 
where  A.  made  a  feoffment  to  B.  of  certain  land,  and  afterwards 
made  a  feoffment  to  C.  of  the  same  land,  with  an  antedate  before 
the  feoffment  to  B.  This  was  certainly  making  a  false  instrument 
in  one's  own  name,  making  one's  own  act  to  appear  to  have  been  done 
at  a  time  when  it  was  not  in  fact  done.  We  fail  to  understand  on 
what  principle  this  case  can  rest.  If  the  instrument  had  been  ex- 
ecuted in  the  presence  of  the  feoffee  and  antedated  in  his  presence, 
it  clearly  could  not  have  been  deemed  forgery.  Beyond  this,  as  the 
feoffment  took  effect,  not  by  the  charter  of   feoffment,  but  by  the 


FORGERY 


205 


livery  of  seisin — the  entry  of  the  feoffer  upon  the  land  with  the  char- 
ter and  the  delivery  of  the  twig  or  clod  in  the  name  of  the  seisin 
of  all  the  land  contained  in  the  deed — it  is  not  easy  to  see  how  tlie 
date  could  be  material. 

The  case  of  Mead  v.  Young,  4  T.  R.  28,  is  cited  as  another  excep- 
tion to  the  rule.  A  bill  of  exchange  payable  to  A.  came  into  the 
hands  of  a  person  not  the  payee,  but  having  the  same  name  with  A. 
This  person  indorsed  it.  In  an  action  by  the  indorsee  against  the 
acceptor,  the  question  arose  whether  it  was  competent  for  the  defend- 
ant to  show  that  the  person  indorsing  the  same  was  not  the  real 
payee.  It  was  held  competent,  on  the  ground  that  the  indorsement 
was  a  forgery,  and  that  no  title  to  the  note  could  be  derived  through 
a  forgery.  In  this  case  of  Mead  v.  Young,  the  party  assumed  to  use 
the  name  and  power  of  the  payee.  The  indorsement  purported  to  be 
used  was  intended  to  be  taken  as  that  of  another  person,  the  real  payee. 

The  writing  alleged  to  be  forged  in  the  case  at  bar  was  the  hand- 
writing of  the  defendant,  known  to  be  such,  and  intended  to  be  re- 
ceived as  such.  It  binds  the  defendant.  Its  falsity  consists  in  the 
implication  that  he  was  a  partner  of  Schouler  and  authorized  to  bind 
him  by  his  act.     This,  though  a  fraud,  is  not,  we  think,  a  forgery. 

Suppose  the  defendant  had  said  in  terms,  "I  have  authority  to  sign 
Schouler's  name,"  and  then  had  signed  it  in  the  presence  of  the  prom- 
isee. He  would  have  obtained  the  discharge  of  the  former  note  by 
a  false  pretense,  a  pretense  that  he  had  authority  to  bind  Schouler. 
"It  is  not,"  says  Sergeant  Hawkins,  "the  bare  writing  of  an  instru- 
ment in  another's  name  without  his  privity,  but  the  giving  it  a  false 
appearance  of  having  been  executed  by  him,  which  makes  a  man 
guilty  of  forgery."     1  Hawk.  c.  70,  §  5. 

If  the  defendant  had  written  upon  the  note,  "William  Schouler,  by 
his  agent,  Henry  W.  Baldwin,"  the  act  plainly  would  not  have  been 
forgery.  The  party  taking  the  note  knows  it  is  not  the  personal  act 
of  Schouler.  He  does  not  rely  upon  his  signature.  He  is  not  de- 
ceived by  the  semblance  of  his  signature.  He  relies  solely  upon  the 
averred  agency  and  authority  of  the  defendant  to  bind  Schouler.  So, 
in  the  case  before  us,  the  note  was  executed  in  the  presence  of  the 
promisee.  He  knew  it  was  not  Schouler's  signature.  He  relied  upon 
the  defendant's  statement  of  his  authority  to  bind  him  as  partner  in 
the  firm  of  Schouler,  Baldwin  &  Co.;  or,  if  the  partnership  had  in 
fact  before  existed,  but  was  then  dissolved,  the  effect  of  the  defend- 
ant's act  was  a  false  representation  of  its  continued  existence. 

In  the  case  of  Regina  v.  White,  1  Denison,  208,  the  prisoner  in- 
dorsed a  bill  of  exchange,  "Per  procuration,  Thomas  Tomlinson, 
Emanuel  White."  He  had  no  authority  to  make  the  indorsement, 
but  the  twelve  judges  held  unanimously  that  the  act  was  no  for- 
gery.    ♦     *     * 


206  OFFENSES   AGAINST   PKOPERTY 

The  result  is  that  the  exceptions  must  be  sustained  and  a  new  trial 
ordered  in  the  common  pleas.  It  will  be  observed,  however,  that  the 
grounds  on  which  the  exceptions  are  sustained  seem  necessarily  to 
dispose  of  the  cause. 

Exceptions  sustained. 


COMMONWEALTH  v.   SANKEY. 
CSupreme  Court  of  Pennsylvania,  1853.    22  Pa.  390,  60  Am.  Dec.  91.) 

Black,  C.  J.^^  The  defendant  wrote  a  note  payable  to  himself, 
for  $141,  and  got  an  illiterate  man  to  sign  it,  by  falsely  and  fraudu- 
lently pretending  that  it  was  for  $41  only.  On  a  special  verdict  find- 
ing these  facts,  the  court  gave  judgment  in  favor  of  the  accused. 

The  act  was  a  forgery  according  to  all  the  text-writers  on  crim- 
inal law,  from  Coke  to  Wharton.  But  their  doctrine  is  not  sustained 
by  the  ancient  English  cases,  and  is  opposed  by  the  modern  ones. 
Only  three  American  decisions  were  cited  on  the  argument;  and  we 
take  it  for  granted  that  there  are  no  others  on  the  point.  Two  of 
these,  Putnam  v.  Sullivan,  4  Mass.  45,  3  Am.  Dec.  206,  Hill  v.  State, 
1  Yerg.  (Tenn.)  76,  24  Am.  Dec.  441,  are  wholly  with  the  defendant, 
and  the  other,  State  v.  Shurtliff,  18  Me.  371,  supports  the  argument 
of  the  commonwealth's  counsel.  The  weight  of  the  judicial  author- 
ities is  in  favor  of  the  opinion  that  this  is  no  forgery.  We  think  that 
the  arguments  drawn  from  principle,  and  the  reason  of  the  thing, 
preponderate  on  the  same  side.  It  must  be  admitted  that,  in  morals, 
such  an  imposture  as  this  stands  no  better  than  the  making  of  a  false 
paper.  But  even  a  knave  must  not  be  punished  for  one  offense  be- 
cause he  has  been  guilty  of  another.  Forgery  is  the  fraudulent  mak- 
ing or  altering  of  a  writing  to  the  prejudice  of  another's  right.  The 
defendant  was  guilty  of  the  fraud,  but  not  of  the  making.  The  paper 
was  made  by  the  other  person  himself,  in  prejudice  of  his  own  right. 
To  complete  the  offense,  according  to  the  definition  it  requires  a 
fraudulent  intent  and  a  making  both.  The  latter  is  innocent  with- 
out the  former,  and  the  former,  if  carried  into  effect  without  the 
latter,  is  merely  a  cheat.  If  every  trick,  or  false  pretense,  or  fraud- 
ulent act  by  which  a  person  is  induced  to  put  his  name  to  a  paper 
wbich  he  would  not  otherwise  have  signed,  is  to  be  called  a  forgery, 
where  shall  we  stop,  and  what  shall  be  the  rule  ?  Is  it  forgery  to  take 
a  note  for  a  debt  known  not  to  be  due ;  or  to  procure  a  deed  for  val- 
uable land  by  fraudulently  representing  to  the  ignorant  owner  that 
it  is  worthless ;  or  to  get  a  legacy  inserted  in  a  will  by  imposing  on 
a  weak  man  in  his  illness?    All  these  would  be  frauds — frauds  per- 

25  The  statement  of  facts  is  omitted. 


FORGERY 


207 


petrated  for  the  purpose  of  getting  papers  signed — as  much  as  that 
which  was  committed  in  this  case.  But  no  one  thinks  they  are  for- 
geries. 

For  these  reasons,  and  the  reasons  given  in  the  court  below,  which 
we  fully  adopt,  the  judgment  is  to  be  affirmed. 


2,  Character  of  the  Instrument 


REGINA  V.  SMITH. 

(Court  of  Criminal  Appeal,  1858.     8  Cox,  C.  C.  32.) 

Case  reserved  and  stated  by  the  Recorder  of  London: 

John  Smith  was  tried  before  me  at  the  Central  Criminal  Court,  upon 
an  indictment  charging  him  with  forging  certain  documents,  and  with 
uttering  them,  knowing  them  to  be  forged. 

It  appeared  that  the  prosecutor,  George  Berwick,  was  in  the  habit 
of  selling  certain  powders,  some  called  "Berwick's  baking  powders," 
and  others  "Berwick's  egg  powders." 

These  powders  were  invariably  sold  in  packets,  and  were  wrapped 
up  in  printed  papers. 

The  baking  powders  were  wrapped  in  papers  which  contained  the 
name  of  George  Berwick,  but  they  were  so  wrapped  that  the  name 
was  not  visible  till  the  packets  were  opened. 

It  was  proved  that  the  prisoner  had  endeavored  to  sell  baking 
powders,  but  had  them  returned  to  him  because  they  were  not  Bor- 
wick's  powders. 

Subsequently  he  went  to  a  printer,  and,  representing  his  name  to 
be  Berwick,  desired  him  to  print  10,000  labels  as  nearly  as  possible 
like  those  used  by  Berwick,  except  that  the  name  of  Berwick  was  to 
be  emitted  in  the  baking  powders. 

The  labels  were  printed  according  to  his  order,  and  a  considerable 
quantity  of  the  prisoner's  powders  were  subsequently  sold  by  him  as 
Berwick's  powders  wrapped  in  these  labels. 

On  the  part  of  the  prisoner  it  was  objected  that  the  making  or  ut- 
tering such  documents  did  not  constitute  the  offense  charged  in  the 
indictment. 

This  point  I  determined  to  reserve  for  the  consideration  of  the  Court 
of  Criminal  Appeal,  and  I  left  it  to  the  jury  to  find  whether  the  labels 
so  far  resembled  these  used  by  Berwick  as  to  deceive  persons  of  or- 
dinary observation,  and  to  make  them  believe  them  to  be  Berwick's 


208  OFFENSES   AGAINST    PEOPERTY 

labels,  and  whether  they  were  made  and  uttered  by  him  with  intent 
to  defraud  the  different  parties  by  so  deceiving  them,  directing  thera 
in  that  case  to  find  the  prisoner  guilty. 

The  jury  found  him  guilty.     *     *     * 

Mclntyre,  for  the  prisoner.  This  is  not  a  forgery,  either  at  com- 
mon law  or  within  the  statute.  The  gist  of  the  offense  was  the  pass- 
ing off  for  genuine  baking  powder  that  which  was  not  so;  in  fact, 
something  that  was  not  so  good.  This  was  nothing  more  than  a  puff. 
In  Reg.  V.  Closs,  27  L.  J.  54,  M.  C,  it  was  held  that  a  person  could 
not  be  indicted  for  forging  or  uttering  the  forged  name  of  a  painter, 
by  falsely  putting  it  on  a  spurious  picture  to  pass  it  off  as  the  genu- 
ine painting  of  the  artist.  This  was  no  more  than  a  printed  label,  and 
only  differs  from  Reg.  v.  Closs  in  that  there  the  name  was  painted 
on  the  picture.  In  the  case  of  Burgess'  sauce  labels  the  Court  of 
Chancery  refused  to  restrain  the  son  from  using  labels  with  the  fa- 
ther's name  upon  them.  [Pollock,  C.  B.  Suppose  a  man  opened  a 
shop  and  painted  it  so  as  exactly  to  resemble  his  neighbor's;  would 
that  be  forgery  ?]  No.  The  affixing  this  label  to  the  powder  amounts 
to  no  more  than  saying:  "This  is  Borwick's  powder."  If  the  pris- 
oner had  had  a  license,  he  would  have  had  a  right  to  use  the  labels. 

Huddleston  (Poland  with  him),  for  the  prosecution.  The  jury  have 
found  that  the  labels  were  made  and  uttered  by  the  prisoner  with  in- 
tent to  defraud.  The  definition  of  forgery  at  common  law  is  "the 
fraudulent  making  or  alteration  of  a  writing  to  the  prejudice  of  an- 
other man's  right."  2  Russ.  on  Crimes,  318;  4  Black.  Com.  247; 
Stark.  Crim.  Law,  468 ;  2  East,  P.  C.  p.  965,  c.  19,  §  49.  And  the 
finding  of  the  jury  brings  this  case  within  that  definition.  [Chan- 
NELL,  B.  What  was  a  document  at  common  law  which  could  be  the 
subject  of  a  forgery?  Pollock,  C.  B.  Was  a  book  of  which  another 
man  made  copies?]  It  is  submitted  that  it  was.  Com.  Dig.  "Forgery." 
Letters  may  be  the  subject  of  forgery.  Chit.  Crim.  Law,  1022.  So 
a  diploma  of  the  College  of  Surgeons  may  be.  Reg.  v.  Hodgson,  7 
Cox,  C.  C.  122.  So  also  the  certificate  of  the  examiners  of  the  Trinity 
House.  Reg.  v.  Toshack,  1  Den.  C.  C.  492.  So  a  letter  of  the  char- 
acter of  a  servant  may  be.  Reg.  v.  Sharman,  1  Dears.  C.  C.  285. 
Then  this  label  is  a  certificate  as  to  the  character  of  an  article.  Reg. 
v.  Closs,  R.  V.  Colicott,  R.  &  R.  201,  and  Stark.  Crim.  Law,  479,  were 
also  cited. 

Bramwicll,  B.^^  I  think  that  this  was  not  a  forgery,  even  assum- 
ing that  the  definition  of  forgery  at  common  law  is  large  enough  to 
comprehend  this  case.  Forgery  supposes  the  possibility  of  a  genuine 
document,  and  that  the  false  document  is  not  as  good  as  the  genuine 
document,  and  that  the  one  is  not  as  efficacious  for  all  purposes  as  the 

26  The  statement  of  facts  is  abridged  and  tbe  concurring  opinions  of  Pol- 
lock, C.  B.,  and  Willes  and  Byles,  JJ.,  are  omitted. 


FORGE UY  209 

Other.  In  the  present  case  one  of  these  documents  is  as  good  as  the 
other,  the  one  asserts  what  the  other  does,  the  one  is  as  true  as  the 
other,  but  the  one  is  improperly  used.  But  the  question  now  is  wheth- 
er the  document  itself  is  a  false  document.  It  is  said  that  the  one 
is  so  like  one  used  by  somebody  else  that  it  may  mislead.  That  is 
not  material,  or  whether  one  is  a  little  more  true  or  more  false  than 
the  other.  I  cannot  see  any  false  character  in  the  document.  The 
prisoner  may  have  committed  a  gross  fraud  in  using  the  wrappers 
for  that  which  was  not  the  genuine  powder,  and  may  possibly  be  in- 
dicted for  obtaining  money  by  false  pretenses,  but  I  think  he  cannot 
be  convicted  of  forgery. 


3.  Thk  Inti^nT 


REGINA  V.  HODGSON. 
(Court  for  Crown  Cases  Reserved,  1S56.    36  Eng.  Law  &  Eq.  626.) 

The  following  case  was  reserved  and  stated  for  the  consideration 
and  decision  of  the  Court  of  Criminal  Appeal  by  Bramwell,  B.,  at 
the  Staffordshire  Spring  Assizes,  1856: 

Henry  Hodgson  was  indicted  at  common  law  for  forging  and  utter- 
ing a  diploma  of  the  College  of  Surgeons.  The  indictment  was  in 
the  common  form. 

The  College  of  Surgeons  has  no  power- of  conferring  any  degree 
or  qualification,  but  before  admitting  persons  to  its  membership,  it 
examines  them  as  to  their  surgical  knowledge,  and  if  satisfied  there- 
with admits  them,  and  issues  a  document,  called  a  diploma,  which 
states  the  membership.  The  prisoner  had  forged  one  of  these  di- 
plomas. He  procured  one  actually  issued  by  the  College  of  Sur- 
geons, erased  the  name  of  the  person  mentioned  in  it,  and  substi- 
tuted his  own,  changed  the  date,  and  made  other  alterations  to  make 
it  appear  to  be  a  document  issued  by  the  college  to  him.  He  hung  it 
up  in  his  sitting  room,  and,  on  being  asked  by  two  other  medical  prac- 
titioners whether  he  was  qualified,  he  said  he  was,  and  produced  this 
document  to  prove  his  assertion. 

When  a  candidate  for  an  appointment  as  vaccinating  officer,  he 
stated  he  had  his  qualification,  and  would  show  it  if  the  person  in- 
quiring (the  clerk  of  the  guardians,  who  were  to  appoint  to  the  office) 
would  go  to  his  (the  prisoner's)  gig.  He  did  not,  however,  then  pro- 
duce or  show  it. 

The  prisoner  was  found  guilty,  the  facts  to  be  taken  to  be  that 
he  forged  the  document  in  question,  with  the  general  intent  to  in- 
MiKELL  Cas.Ck.L. — 14 


210  OFFENSES   AGAINST   PKOPERTY 

duce  a  belief  that  the  document  was  genuine,  and  that  he  was  a 
member  of  the  College  of  Surgeons,  and  that  he  showed  it  to  two 
persons,  with  the  particular  intent  to  induce  such  belief  in  those  per- 
sons, but  that  he  had  no  intent  in  forging,  or  in  the  uttering  and 
publishing  (assuming  there  was  one),  to  commit  any  particular  fraud 
or  specific  wrong  to  any  individual.     *     *     * 

JERVIS,  C.  J.-^  I  am  of  opinion  that  this  conviction  is  wrong.  The 
recent  statute  for  further  improving  the  administration  of  criminal 
justice  (St.  14  &  15  Vict.  c.  100)  alters  and  affects  the  forms  of  plead- 
ings only,  and  does  not  alter  the  character  of  the  offense  charged. 
The  law  as  to  that  is  the  same  as  if  the  statute  had  not  been  passed. 
This  is  an  indictment  for  forgery  at  common  law.  I  will  not  stop 
to  consider  whether  this  is  a  document  of  a  public  nature  or  not, 
though  I  am  disposed  to  think  that  it  is  not  a  public  document ;  but, 
whether  it  is  or  not,  in  order  to  make  out  the  offense  there  must  have 
been,  at  the  time  of  the  instrument  being  forged,  an  intention  to  de- 
fraud some  person.  Here  there  was  no  such  intent  at  that  time,  and 
there  was  no  uttering  at  tlie  time  when  it  is  said  there  was  an  inten- 
tion to  defraud. 

Conviction  quashed. 

2  7  The  statement  of  facts  is  abridgred  and  the  concurring  opinions  of  "Wight- 
man,  J.,  and  Bramwell,  B.,  are  omitted. 


OFFENSES   AGAINST   THE   PUBLIC   HEALTH,  SAFETY,  ETC.  211 


OFFENSES   AGAINST   THE   PUBLIC   HEALTH,   SAFETY, 

COMFORT  AND  MORALS 

I.  Nuisance  in  General  * 


BELL  V.  STATE. 

(Supreme  Court  of  Tennessee,  1851.    1  Swan,  42.) 

McKiNNEY,  J.,2  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  was  indicted  and  convicted  in  the  circuit  court 
of  Blount  for  the  utterance  of  certain  grossly  obscene  words  in  public, 
and  in  the  hearing  of  divers  persons,  in  the  town  of  Louisville,  in  said 
county.  The  dififerent  words  alleged  to  have  been  spoken  are  set  forth 
in  three  different  counts.  This  was  necessary  to  the  validity  of  the 
indictment,  but  we  omit  to  repeat  them  here,  because  of  their  extremely 
vulgar  and  offensive  character.  It  is  sufticient  to  state  that  they  relate 
to  acts  of  criminal  intercourse  alleged  by  the  defendant  to  have  taken 
place  between  him  and  the  daughters  of  Abraham  Hartsell,  and  to  a 
loathsome  disease,  said  by  the  defendant  to  have  been  contracted  by 
him  from  the  wife  of  Hiram  Hartsell. 

Two  questions  are  presented  for  our  determination:  First,  is  the 
utterance  of  obscene  words,  in  public,  an  indictable  offense?  And,  if 
so,  secondly,  are  the  words  proved  sufficient  to  support  the  charges  in 
the  indictment? 

Upon  the  first  point  the  argument  for  the  plaintiff  in  error  rests 
upon  the  narrow  and  unsubstantial  ground  that  no  precedent  or  adju- 
dication has  been  found  in  support  of  such  an  indictment.  Admitting 
this  to  be  true  for  the  present,  what  does  it  estabUsh? 

If  the  case  stated  in  the  indictment  falls  within  the  operation  of  clear, 
well-defined,  and  well-established  principles  of  law,  it  is  to  be  urged 
against  the  maintenance  of  this  prosecution  that  no  similar  case  has 
heretofore  occurred  calling  for  the  like  application  of  such  principles  ? 
Surely  not,  at  this  day.  Are  not  innumerable  instances  to  be  found 
in  the  modern  Reports,  both  of  England  and  America,  in  which  the 
liberal,  enlightened,  and  expansive  principles  of  the  common  law  have 
been  adapted  and  applied  to  new  cases,  for  which  no  precedents  were 
to  be  found,  so  as  to  meet  the  ever-varying  condition  and  emergencies 

1  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §  115. 

2  Tart  of  the  opinion  is  omitted. 


212  OFFKNSES   AGAINST   THE    PUBLIC    HEALTH,  SAFETY,  ETC. 

of  society?  And  this  must  continue  to  be  so,  unless  a  stop  be  put  to 
all  further  progress  of  society,  and  unless  a  stop  be  also  put  to  the 
further  workings  of  depraved  human  nature,  in  seeking  out  new  in- 
ventions to  evade  the  law. 

What,  then,  are  the  well-established  principles  of  the  common  law 
applicable  to  the  present  case? 

The  distinguished  commentator  on  the  laws  of  England  informs  us 
that  upon  the  foundations  of  the  law  of  nature  and  the  law  of  revela- 
tion all  human  laws  depend.  1  Bl.  Com.  42.  The  municipal  law  looks 
to  something  more  than  merely  the  protection  of  the  lives,  the  liberty, 
and  the  property  of  the  people.  Regarding  Christianity  as  part  of  the 
law  of  the  land,  it  respects  and  protects  its  institutions,  and  assumes 
likewise  to  regulate  the  public  morals  and  decency  of  the  community. 
The  same  enlightened  author  (1  Bl.  Com.  124)  distinguishes  between 
the  absolute  and  relative  duties  of  individuals  as  members  of  society. 
He  shows  very  clearly  that,  while  human  laws  cannot  be  expected  to 
enforce  the  former,  their  proper  concern  is  with  social  and  relative  du- 
ties ;  municipal  law  being  intended  only  to  regulate  the  conduct  of 
men,  considered  under  various  relations,  as  members  of  civil  society. 
Hence  he  lays  it  down  that,  however  abandoned  in  his  principles  or 
vicious  in  his  practice  a  man  may  be,  provided  he  keeps  his  wickedness 
to  himself  and  does  not  offend  against  the  rules  of  public  decency,  he 
is  out  of  the  reach  of  human  laws.  But,  says  the  learned  writer,  if  he 
make  his  vices  public,  though  they  be  such  as  seem  principally  to  affect 
himself — as  drunkenness,  or  the  like — they  then  become,  by  the  bad 
example  they  set,  of  pernicious  effect  to  society ;  and  therefore  it  is 
then  the  business  of  human  laws  to  correct  them.  See,  also,  4  Bl.  Com. 
41   42      *     *     * 

These  principles  have  been  fully  recognized  by  this  court.  In  the 
case  of  Grisham  and  Ligan  v.  State,  2  Yerg.  (Tenn.)  589,  that  thorough 
common  lawyer,  the  late  Judge  Whyte,  declared  that  "the  common  law 
is  the  guardian  of  the  morals  of  the  people,  and  their  protection  against 
ofifenses  notoriously  against  public  decency  and  good  morals."  And 
he  adds,  in  another  part  of  the  same  opinion :  "We  have  the  express 
authority  of  the  common  law,  as  declared  by  the  judges  in  the  courts 
of  justice,  that  all  offenses  against  good  morals  are  cognizable  and  pun- 
ishable in  the  temporal  courts  that  are  not  particularly  assigned  to  the 
spiritual  court." 

The  books  of  reports,  both  of  England  and  this  country,  abound  with 
cases  where,  upon  these  principles  of  the  common  law,  convictions 
have  been  enforced  for  various  offenses  against  public  morality  and 
decency,  without  the  aid  of  any  statutory  enactment.  And  surely  it 
can  be  no  reason  for  the  relaxation  of  these  salutary  principles,  but 
rather  the  contrary,  that  in  this  country  we  have  no  "spiritual  court," 
to  lend  its  aid  in  the  suppression  of  the  numerous  offenses  falling  with- 
in the  class  now  under  consideration,  and  that  such  of  them  as  cannot 


NUISANCE   IN   GENERAL  213 

be  reached  in  the  mode  pursued  in  the  case  before  us  must  "go  unwhip- 
ped  of  justice." 

It  would  be  tedious  to  enumerate  the  cases  in  which  offenses  have 
been  held  indictable  as  contra  bonos  mores.  A  few  will  suffice  for  the 
present  purpose.  Public  drunkenness,  4  Bl.  Com.  41.  All  indecent 
exposure  of  one's  person  to  the  public  view,  Id.  65,  note  25.  In  the 
case  of  Rex  v.  Crundcn,  2  Campb.  89,  1  Russ.  on  Crimes,  302,  it  was 
held  an  indictable  offense  to  bathe  in  the  sea  near  inhabited  houses, 
from  which  the  person  might  be  seen,  although  the  houses  had  been 
recently  erected,  and  previously  thereto  it  had  been  used  for  persons  in 
great  numbers  to  bathe  at  such  place.  And  it  was  so  held  for  the  rea- 
son "that,  whatever  place  becomes  the  habitation  of  civilized  men, 
there  the  laws  of  decency  must  be  enforced."     *     *     * 

These  adjudications,  without  citing  others,  we  think  furnish  analo- 
gies sufficiently  strong  to  sustain  the  present  prosecution.  Are  the  out- 
rageously vulgar  and  obscene  words  found  in  this  record,  if  uttered 
in  the  ear  of  the  public,  less  likely  to  shock  any  one's  sense  of  decency, 
and  to  corrupt  the  morals  of  society — not  to  speak  of  their  inevitable 
tendency  to  provoke  violence  and  bloodshed — than  the  oft'enses  charged 
in  the  several  adjudicated  cases  above  cited?  It  does  not  so  appear  to 
us.  But,  were  there  no  analogy  to  be  drawn  from  any  decided  case, 
we  hold  that,  upon  the  broad  principles  of  the  common  law  which  we 
have  stated,  this  prosecution  is  most  amply  sustained.  Thus  fortified 
by  sound  principles — principles  which  lie  at  the  foundation  of  every 
well-regulated  community — (and  resting  on  a  basis  so  immutable)  we 
are  the  more  indifferent  as  to  precedents  exactly  in  point.     *     *     * 

Let  the  judgment  be  affirmed. 


REX  V.  VANTANDILLO. 

(King's  Bencli,  1815.     4  Maule  &  S.  73.) 

The  defendant  was  indicted  for  carrying  her  child  while  infected 
with  the  smallpox  along  a  public  highway.     *     *     * 

Owen  moved  in  arrest  of  judgment,  that  this  was  an  indictment  of 
the  first  impression.  He  observed  that  the  defendant  was  not  indicted 
for  inoculating,  or  causing  the  child  to  be  inoculated,  with  an  infec- 
tious disease ;  for  it  is  not  stated  how  the  child  came  by  it.  And  it  is 
consistent  with  this  indictment  that  the  child  might  have  caught  the 
disease ;  and,  supposing  it  had,  might  not  the  mother  carry  it  through 
the  street  in  order  to  procure  medical  advice  without  being  subject  to- 
be  indicted  for  it?  Therefore  the  indictment  ought  to  have  shown  that 
the  act  was  unlawful,  and  ought  also  to  have  alleged  that  there  was- 
some  sore  upon  the  child  at  the  time  when  it  was  so  carried,  by  anal- 


211  OFFENSES    AGAINST   THE    PUBLIC    HEALTH,  SAFETY,   ETC. 

ogy  to  the  writ  "de  leproso  amovendo,"  which,  it  seems,  lay  only  for 
those  who  appeared  to  the  sight  of  all  men  by  their  voice  and  sores 
to  be  lepers,  and  not  for  those  infected  with  the  disease,  but  not  out- 
wardly in  their  bodies.  See  Fitz.  N.  B.  534.  And  if  the  merely  al- 
leging that  the  disorder  is  infectious  and  dangerous  to  the  subjects  be 
sufficient,  there  is  a  multitude  of  diseases  of  which  the  same  may  be 
predicated,  and  consequently  the  patient  during  the  continuance  of  any 
such  disease  must  never  go  abroad  at  all,  so  difficult  will  it  be  to  draw 
the  line.  The  only  offenses  against  the  public  health  of  which  Hawkins 
speaks  are  spreading  the  plague  and  neglecting  quarantine  (Hawk.  P. 
C.  cc.  52,  53) ;  and  Lord  Hardwicke,  it  appears,  thought  the  building 
of  a  house  for  the  reception  of  patients  inoculated  with  the  smallpox 
was  not  a  public  nuisance,  and  mentioned  that  upon  an  indictment  of 
that  kind  there  had  lately  been  an  acquittal.  And  he  added  that  the 
fears  of  mankind,  though  they  may  be  reasonable,  will  not  create  a 
nuisance  (3  Atk.  750).     *     *     * 

Lk  Blanc,  J.,^  in  passing  sentence,  observed  that  although  the  court 
had  not  found  upon  its  records  any  prosecution  for  this  specific  of- 
fense, yet  there  could  be  no  doubt  in  point  of  law  that  if  a  person 
unlawfully,  injuriously,  and  with  full  knowledge  of  the  fact,  exposes 
in  a  public  highway  a  person  infected  with  a  contagious  disorder,  it 
is  a  common  nuisance  to  all  the  subjects,  and  indictable  as  such.  How- 
ever, the  court  was  not  disposed  upon  the  present  occasion  to  impute 
to  the  defendant  an  intention  of  being  the  cause  of  the  consequences 
which  had  followed.  Neither  did  they  pronounce  that  every  person 
who  inoculated  for  this  disease  was  guilty  of  an  offense,  provided  it 
was  done  in  a  proper  manner,  and  the  patient  was  kept  from  the  society 
of  others,  so  as  not  to  endanger  a  communication  of  the  disease.  In 
such  a  case  the  law  did  not  pronounce  it  to  be  an  off"ense.  But  no  per- 
son having  a  disorder  of  this  description  upon  him  ought  to  be  publicly 
exposed,  to  the  endangering  the  health  and  lives  of  the  rest  of  the  sub- 
jects. 

The  defendant  was  sentenced  to  imprisonment  in  the  custody  of  the 
marshal  for  three  calendar  months. 

3  The  statement  of  facts  is  abridged  and  tlie  opinion  of  Lord  Ellenborough, 
C.  J.,  is  omitted. 


NUISANCE   IN   GENERAL  215 

PEOPLE  V.  DETROIT  WHITE  LEAD  WORKS. 

(Supreme  Court  of  Michigan,  1S90.    S2  Mich.  471,  40  N.  W.  7:Jo,  9  L.  R.  A.  722.) 

Grant,  J.*  This  case  is  brought  to  this  court  by  writ  of  certiorari 
from  the  Recorder's  Court  of  the  city  of  Detroit. 

The  defendants  were  convicted  of  unlawfully  and  wilfully  creating 
and  maintaining  a  nuisance,  consisting  of  the  creation  and  emission  of 
unwholesome,  offensive,  and  nauseating  odors,  smells,  vapors,  and 
smoke,  to  the  great  damage  and  common  nuisance  of  all  people  living 
in  the  neighborhood  thereof,  and  of  all  people  passing  and  repassing 
on  the  streets  and  alleys  adjacent  thereto,  contrary  to  an  ordinance  of 
the  city  in  such  case  made  and  provided,  being  section  5,  c.  55,  Rev. 
Ord.  T884.  The  ordinance  in  question  is  set  forth  in  the  return  of 
the  judge  to  the  writ. 

The  defendant  the  Detroit  White  Lead  Works  is  a  corporation  or- 
ganized under  the  laws  of  the  state.  Defendant  Hinchman  is  presi- 
dent, defendant  Dean  is  vice-president,  and  defendant  Rogers  is  treas- 
urer and  manager.  The  defendants  Hinchman,  Dean,  and  Rogers  were 
fined  $1  each,  and  the  defendant  the  Detroit  White  Lead  Works  $10 
and  costs.     No  other  penalty  was  imposed.     *     *     * 

The  facts  found  and  returned  by  the  Recorder's  Court  clearly  estab- 
lished a  nuisance,  according  to  all  the  authorities.  These  facts  so  found 
are  conclusive  in  this  court,  and  we  can  only  apply  the  law  to  the  facts. 
Counsel  for  defendants  cannot,  therefore,  seriously  contend  that  we 
can  enter  into  a  discussion  and  determination  of  that  question,  espe- 
cially as  the  evidence  is  not  before  us. 

Defendants  are  not  aided  by  the  fact  found  by  the  court  that,  during 
the  time  covered  by  the  complaint,  the  business,  in  all  respects,  had 
been  carried  on  in  a  careful  and  prudent  manner,  and  nothing  had  been 
done  by  those  managing  it  that  was  not  a  reasonable  and  necessary  in- 
cident of  the  business ;  nor  by  the  further  fact  that,  when  the  defend- 
ant company  commenced  its  business,  the  lands  in  the  vicinity  of  its 
works  were  open  common.  It  is  undoubtedly  true  that  the  defendants, 
or  their  predecessors,  established  their  works  at  a  point  remote  from 
habitation,  possibly  in  recognition  of  the  fact  that  such  a  business  was 
at  least  not  pleasant,  if  not  injurious,  to  the  health  and  enjoyment  of 
those  living  near  it.  The  city  of  Detroit  has  extended  to  the  defend- 
ants' works,  and  the  owners  of  adjoining  lands  have  erected  dwellings 
thereon.  This  they,  of  course,  had  the  legal  right  to  do.  The  defend- 
ants cannot  be  protected  in  the  enjoyment  of  their  property,  and  the 
carrying  on  of  their  business,  if  it  becomes  a  nuisance  to  people  living 
upon  the  adjoining  properties,  and  to  those  doing  legitimate  business 
with  them.    Whenever  such  a  business  becomes  a  nuisance,  it  must  give 

*  Fart  of  the  opinion  is  omitted. 


216  OFFENSES    AGAINST   THE   PUBLIC   HEALTH,  SAFETY,  ETC. 

way  to  the  rights  of  the  pubHc,  and  the  owners  thereof  must  either  de- 
vise some  means  to  avoid  the  nuisance,  or  must  remove  or  cease  the 
business.  It  may  not  be  continued  to  the  injury  of  the  health  of  those 
living  in  its  vicinity.  This  rule  is  founded  both  upon  reason  and  au- 
thority. Nor  is  it  of  any  consequence  that  the  business  is  useful  or 
necessary',  or  that  it  contributes  to  the  wealth  and  prosperity  of  the 
community.  Wood,  Nuis.  par.  19;  Queen  v.  Train,  2  Best  &  S.  640; 
Works  V.  Railroad  Co.,  5  McLean,  425,  Fed.  Cas.  No.  18,046 ;  Respub- 
lica  V.  Caldwell,  1  Dall.  (Pa.)  150,  1  L.  Ed.  77;  Ross  v.  Butler,  19  N.  J. 
Eq.  296,  97  Am.  Dec.  654;  Robinson  v.  Baugh,  31  Mich.  290. 

It  is  true  that,  in  places  of  population  and  business,  not  everything 
that  causes  discomfort,  inconvenience,  and  annoyance,  or  which,  per- 
haps, may  lessen  the  value  of  surrounding  property,  will  be  condemned 
and  abated  as  a  nuisance.  It  is  often  difficult  to  determine  the  bound- 
ary line  in  many  such  cases.  The  carrying  on  of  many  legitimate  busi- 
nesses is  often  productive  of  more  or  less  annoyance,  discomfort,  and 
inconvenience,  and  may  injure  surrounding  property  for  certain  pur- 
poses, and  still  constitute  no  invasion  of  the  rights  of  the  people  living 
in  the  vicinity.  Such  a  case  was  Gilbert  v.  Showerman,  23  Mich.  448. 
A  case  similar  in  its  facts  was  before  this  court  in  Robinson  v.  Baugh, 
31  Mich.  290,  which  was  distinguished  by  the  court  from  Gilbert  v. 
Showerman. 

In  the  former  case  the  business  was  legitimate  and  necessary.  The 
suit  was  brought  in  equity  to  enjoin  the  business  at  the  place  where 
carried  on.  The  facts  were  that  smoke  and  soot  from  defendant's 
works  were  often  borne  by  the  wind  in  large  amounts  to  the  premises 
of  the  complainants,  and  sometimes  entered  their  dwellings  by  the 
chimneys,  and  through  cracks  by  the  doors  and  windows,  in  such  meas- 
ure as  to  be  extremely  offensive  and  harmful,  and  the  noise  so  great 
as  to  be  disagreeable,  and  positively  hurtful,  the  jar  annoying  and  dis- 
turbing the  sick,  and  in  some  cases  causing  substantial  damage  to  dwell- 
ings. The  court  laid  down  the  rule  [31  Mich.  296]  as  follows:  "How- 
ever lawful  the  business  may  be  in  itself,  and  however  suitable  in  the 
abstract  the  location  may  be,  they  cannot  avail  to  authorize  the  conduc- 
tor of  the  business  to  continue  it  in  a  way  which  directly,  palpably,  and 
substantially  damages  the  property  of  others,  unless,  indeed,  the  op- 
erator is  able  to  plant  himself  on  some  peculiar  ground  of  grant,  cove- 
nant, license,  or  privilege  which  ought  to  prevail  against  complainants, 
or  on  some  prescriptive  right,  and  which  in  this  country  can  rarely 
happen." 

No  case  has  been  cited,  and  we  think  none  can  be  found,  sustaining 
the  continuance  of  a  business  in  the  midst  of  a  populous  community, 
which  constantly  produces  odors,  smoke,  and  soot  of  such  a  noxious 
character,  and  to  such  an  extent,  that  they  produce  headache,  nausea, 
vomiting,  and  other  pains  and  aches  injurious  to  health,  and  taint  the 
food  of  the  inhabitants. 


BIGAMY  217 

All  the  defendants  were  properly  convicted.  The  officers  of  the 
company  are  jointly  responsible  for  the  business.  It  is  not  necessary 
to  conviction  that  they  should  have  been  actually  engaged  in  work 
upon  the  premises.  The  work  is  carried  on  by  employees.  The  direc- 
tors and  officers  are  persons  primarily  responsible,  and  therefore  the 
proper  ones  to  be  prosecuted.  A  fine  can  be  collected  against  the  de- 
fendant company,  and  therefore  it  is  subject  to  prosecution.     *     *     * 


II.  Bigamy 


LANE  V.  STATE. 

(Supreme  Court  of  Mississippi,  1903.    82  Miss.  555,  34  South,  353.) 

MaSon  Lane,  alias  Jean  Skyles,  was  convicted  of  bigamy,  and  ap- 
peals. 

Whitfie;ld,  C.  J.  The  rule  is  thoroughly  settled  that  one  indicted 
for  bigamy  must  be  acquitted  on  that  indictment  if  he  can  show  that 
the  first  marriage  alleged  in  the  indictment  is  void  by  reason  of  the 
existence  of  a  prior  lawful  marriage,  still  existing.  State  v.  Goodrich, 
14  W.  Va.  834;  Commonwealth  v.  McGrath,  140  Mass.  at  pages  297, 
298,  6  N.  E.  515;  Am.  &  Eng.  Enc.  of  Law  (2d  Ed.)  vol.  4,  p.  38; 
Crawford's  Case,  7Z  Miss.  172,  18  South.  848,  35  L.  R.  A.  224.  In 
Goodrich's  Case,  supra,  the  court  said :  "The  defense  which  the  pris- 
oner sought  to  establish  by  the  evidence  which  the  court  rejected  was 
that  he  had  on  the  30th  of  April,  1873,  in  Union  county,  Ohio,  been 
lawfully  married,  according  to  the  laws  of  Ohio,  to  Sarah  Snodgrass, 
and  that  she  was  still  living,  and  that  this  marriage  was  in  full  force 
when  he  was  married  on  the  29th  day  of  November,  1874,  to  Frances 
L.  Smith,  in  Wisconsin ;  that,  he  (the  prisoner)  being  then  a  married 
man,  this  marriage  to  Frances  L.  Smith  was  a  mere  nullity,  and  ab- 
solutely void  ab  initio.  The  indictment  alleged  the  offense  of  the  pris- 
oner to  be  the  marrying  by  the  prisoner  on  May  5,  1877,  in  Iowa,  of 
Clara  Allen,  while  his  wife,  Frances  L.  Smith,  was  living.  It  was  in- 
cumbent on  the  state  to  show  that  Frances  L.  Smith  was  his  lawful 
wife,  and  the  prisoner's  defense,  sought  to  be  established  by  the  evi- 
dence rejected  by  the  court,  was  that  Frances  L.  Smith  was  never 
the  lawful  wife  of  the  prisoner,  as  he  was  a  married  man  when  he  mar- 
ried her.     If  the  first  marriage  laid  in  the  indictment  was  a  nullity, 

B  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §§ 
116,  117. 


218        OFFENSES    AGAINST   THE    PUBLIC    HEALTH,  SAFETY,    ETC. 

then  the  second  marriage  laid  in  the  indictment  could  not  constitute 
the  offense  of  bigamy ;  and,  if  the  prisoner  was  a  married  man  when 
the  first  marriage  charged  in  the  indictment  took  place,  this  marriage 
was  an  absolute  nulhty  in  Wisconsin."  The  Attorney  General,  with 
that  commendable  frankness  which  has  always  characterized  his  con- 
duct of  cases  at  this  bar,  confesses  that  this  error  is  fatal.  The  au- 
thorities speak  but  one  voice  on  the  subject. 

The  case  made  here  is  this  :  The  indictment  charges  that  the  appellant 
on  the  12th  of  January,  1903,  married,  in  Mississippi,  Teresa  Whet- 
stone, having  theretofore  married  Rosa  Pitts ;  Rosa  Pitts  being  ahve 
at  the  time  of  the  marriage  to  Teresa  Whetstone.  The  evidence  shows 
that  appellant  was  married  on  the  6th  of  September,  1900,  to  Patty 
Morris,  at  Carvihe,.  in  the  state  of  Texas ;  second,  that  appellant  mar- 
ried Rosa  Pitts,  at  Russellville,  in  the  state  of  Arkansas,  subsequently, 
whilst  Patty  Morris  was  stiU  living  and  his  lawful  wife;  and,  third, 
that  afterwards,  whilst  both  of  these  women  were  alive,  he  married 
in  this  state  Teresa  Whetstone.  Under  the  authorities  cited  upon 
these  facts,  it  is  obvious  that  the  court  should  have  given  the  twelfth 
charged  asked  by  the  defendant,  which  is,  in  effect,  a  peremptory 
charge.  The  first  marriage  alleged  in  the  indictment  being  the  one 
with  Rosa  Pitts,  and  that  marriage  being  void  because  appellant  had 
theretofore  been  lawfully  married  to  Patty  Morris,  who  was  then 
living,  and  who  was  also  living  at  the  time  of  the  marriage  to  Teresa 
Whetstone,  the  defendant  could  not  be  convicted  of  bigamy  under  this 
indictment  and  proof. 

Reversed  and  remanded. 


HARRISON  v.  STATE. 

(Court  of  Criminal  Appeals  of  Texas,  1902.    44  Tex.  Cr.  R.  164,  69  S.  W.  500.) 

Davidson,  P.  J.®  Appellant  was  convicted  of  bigamy,  and  given 
four  years  in  the  penitentiary.     *     *     * 

It  was  further  contended  that  the  testimony  is  not  sufificient  to 
support  the  finding  of  the  jury.  Mrs.  Sovey,  who  was  appellant's  sec- 
ond wife,  testified  that  she  knew  appellant  had  another  Hving  wife 
at  the  time  she  married  him ;  that  he  informed  her  such  was  the  fact. 
She  further  stated:  'T  knew  that  Mr.  Harrison  and  myself  were  both 
doing  no  wrong,  as  we  had  both  gone  to  God  and  prayed  over  the 
matter.  He  told  us  that  Mr.  Harrison's  first  marriage  was  wrong  in 
the  sight  of  God,  and  that  he  would  do  no  wrong  in  getting  married." 

Appellant  took  the  stand,  and  stated  that  he  married  Mrs.  Earl  and 
lived  with  her  about  a  year.     He  stated  that  he  was  a  minister  of  the 

6  Fart  of  the  opinion  of  Davidson,  P.  J.,  and  tlie  dissenting  opinion  of  Hen- 
derson, J.,  are  omitted. 


BIGAMT  210 

gospel,  and  believed  it  was  right  for  him  to  leave  his  first  wife  and 
marry  the  second  one ;  that  God  had  informed  him  that  he  could  not 
pursue  his  work  as  a  minister  successfully  as  long  as  he  lived  with 
this  woman;  that  he  did  not  procure  a  divorce,  as  it  was  not  neces- 
sary, as  God  told  him  in  a  vision  that  it  would  not  be  wrong  for  him 
to  marry  the  second  time  without  getting  the  divorce ;  that  God  came 
to  him  in  visions,  and  whatever  He  commanded  him  to  do,  he  did  it, 
regardless  of  consequences ;  that  when  God  commanded  him  to  do  a 
thing,  no  matter  what  the  law  was  with  which  it  came  in  conflict,  he 
would  do  it,  regarding  the  law  of  God  as  superior  to  the  law  of  man. 
He  denied  being  crazy,  and  asserted  that  he  was  not  trying  to  play 
crazy;  that  in  his  ministerial  work  he  had  always  obeyed  the  com- 
mand of  God,  and  that  God  had  wonderfully  blessed  his  work;  that 
he  had  60  conversions  within  the  last  few- days,  etc.;  that  he  knew 
the  laws  of  Texas  required  the  marriage  ceremony ;  that  a  second 
marriage  without  divorce  was  against  the  law,  and  a  penitentiary 
offense.  He  knew  it  was  wrong,  according  to  human  laws,  but  act- 
ed under  Divine  guidance. 

Dr.  Howard  testified  that  he  knew  defendant ;  saw  him  in  the  coun- 
ty jail;  observed  his  actions  and  talked  with  him  and  heard  his  testi- 
mony ;  that  he  was  insane ;  that  he  did  not  believe  he  was  able  to 
distinguish  between  right  and  wrong,  with  regard  to  the  crime  of 
bigamy.  "I  think  he  has  what  is  known  as  'religious  insanity,'  or,  in 
other  words,  'emotional  insanity.'  "  He  gave  it  as  his  opinion  that 
appellant  was  not  capable  of  judging  between  right  and  wrong,  in 
marrying  the  second  wife  while  his  first  was  alive ;  that  a  man  whose 
mind  was  in  such  a  diseased  condition  that  he  believed  he  had  personal 
revelation  from  God,  and  visions  directing  him  in  important  under- 
takings, and  these  delusions  continued  in  waking  hours  as  real  to 
him,  and  such  condition  continued  through  a  space  of  years,  would 
not,  in  his  opinion,  be  capable  of  judging  between  right  and  wrong 
in  regard  to  any  action  closely  connected  with  such  delusions.  Dr. 
Walker  testified  that  he  saw  defendant  in  the  county  jail  a  few  weeks 
before  the  trial.  He  seemed  to  be  suffering  under  some  delusion  caus- 
ed by  starvation  or  indigestion. 

Walker,  a  farmer,  testified  that  he  lived  close  neighbor  to  defend- 
ant since  his  marriage  with  Mrs.  Sovey,  his  second  wife ;  that  he  had 
no  particular  dealings  with  him,  but  had  frequently  been  in  his  com- 
pany; had  often  heard  him  preach,  and,  in  his  opinion,  appellant  was 
of  sound  mind,  and  knew  right  from  wrong.  Such  delusions  and 
visions  as  defendant  seemed  to  have  could  have  been  caused  by  either 
starvation  or  indigestion.  He  expressed  the  opinion  that  if  such  con- 
dition continued  through  a  term  of  years,  and  the  party  believed  while 
awake,  as  well  as  in  his  dreams,  that  he  had  personal  conversations 
with  God,  and  God  advised  him  in  all  important  undertakings,  and  was 
in  the  habit  of  going  down  on  his  face  before  the  Lord,  and  that  such 


220  OFFENSES   AGAINST   THE    PUBLIC    HEALTH,  SAFETY,  ETC. 

visions  seemed  to  be  real  to  him  and  were  frequent,  such  a  man  would 
not  be  responsible. 

Costley  testified  that  he  was  the  jailer  who  had  Harrison  in  charge 
while  confined,  and  watched  him  closely.  He  did  not  think  appellant 
crazy,  but  thought  he  was  "nutty"  on  the  subject  of  religion ;  that 
he  was  continually  shouting  and  preaching,  and  seemed  to  be  laboring 
under  the  delusion  that  he  was  converting  large  numbers  of  people. 
He  did  not  know  whether  appellant  fasted  20  days,  except  from  what 
other  prisoners  in  the  jail  told  him;  that  he  did  not  know,  from  a 
scientific  standpoint,  whether  or  not  appellant  was  crazy. 

This  is  the  substance  of  the  testimony  found  in  the  record.  The  evi- 
dence of  those  witnesses  who  testify  to  their  belief  that  he  was  insane 
confines  it  to  the  issue  of  moral  insanity — moral  insanity  reaching  the 
point  of  irresistible  impulse.  If  the  party  could  distinguish  between 
the  right  and  wrong  of  the  act  he  was  doing,  it  is  not  a  defense  to  an 
act  which  would  otherwise  be  criminal.  Mr.  Busvvell  says :  "It  seems 
that  evidence  as  to  a  party's  reHgious,  political,  or  moral  beliefs,  if 
unsupported  by  other  testimiony,  will  not  generally  be  admitted  to 
prove  his  insanity."  Busw.  Insan.  par.  210.  The  same  author  says 
(section  10) :  "No  perversion  of  the  moral  afifections  and  propensi- 
ties, unless  accompanied  by  such  delusion  as  indicates  the  subversion 
of  the  will  and  reason,  is  to  be  regarded  as  constituting  insanity  in 
law.  Thus  moral  insanity,  or  the  perversity  of  the  moral  feelings,  is 
of  itself  insufficient  to  invalidate  the  civil  act,  or  excuse  the  criminal 
act,  of  its  subject."  This  author  cites  Flanagan  v.  People,  52  N.  Y. 
467,  11  Am.  Rep.  731,  which  contains  the  doctrine  "that  the  law  does 
not  recognize  the  form  of  insanity  in  which  the  capacity  of  distin- 
guishing between  right  and  wrong  exists,  without  the  power  of  choos- 
ing between  them."  Agkin,  Mr.  Buswell,  following  McNaghten's 
Case,  10  Clark  &  F.  200  (section  437),  says  "that  a  party  who  is  in- 
dicted is  not  entitled  to  acquittal  on  the  ground  of  insanity  if  at  the 
time  of  the  alleged  offense  he  had  capacity  and  reason  sufficient  to 
enable  him  to  distinguish  between  right  and  wrong,  and  understood 
the  nature,  character,  and  consequence  of  his  act,  and  had  mental 
power  sufficient  to  apply  that  knowledge  to  his  own  act."  In  the  same 
work  (section  435)  this  language  is  found:  "If  the  party  had  at  the 
time  of  the  commission  of  the  act  such  degree  of  reason  and  under- 
standing as  is  sufficient  to  enable  him  to  understand  that  his  act  was 
forbidden  by  law,  and  that  the  law  directed  that  the  person  who  did 
such  act  should  be  punished,  he  is  responsible,"  See,  also,  Cannon  v. 
State,  41  Tex.  Cr.  R.  467,  56  S.  W.  361 ;  Leache  v.  State,  22  Tex.  App. 
279,  3  S.  W.  539,  58  Am.  Rep.  638. 

Under  the  authorities  and  the  rule  in  regard  to  the  questions  in- 
volved in  this  case,  appellant  evidently  knew  it  was  wrong  to  marry 
the  second  time.  Fle  knew  it  was  in  violation  of  law  to  marry  with- 
out a  divorce.     If  appellant's  contention  becomes  the  law  of  this 


ADULTERY  --1 


State,  the  sacrament  of  plural  marriages  of  the  Mormon  Church 
would  exempt  from  punishment  all  the  disciples  of  Brigham  Young 
and  Joseph  Smith  who  practiced  polygamy  in  this  state. 

We  are  of  opinion  that  the  verdict  of  the  jury  is  correct,  and  the 
judgment  is  in  all  things  affirmed. 


III.  Adultery  » 


STATE  V.  BIGELOW. 

(Supreme  Court  of  Vermont,  Caledonia,  1915.    92  Atl.  978.) 

Bert  Bigelow  was  convicted  of  adultery,  and  his  motion  for  arrest 
of  judgment  was  overruled,  and  he  excepts. 

Taylor,  J.  This  is  an  information  for  adultery.  The  respondent 
pleaded  guilty,  and  thereupon  moved  in  arrest  of  judgment  on  the 
ground  that  no  offense  is  charged  in  the  information.  The  motion 
was  overruled,  to  which  the  respondent  excepted.  There  was  judg- 
ment and  sentence,  the  execution  of  which  was  stayed,  and  the  cause 
passed  to  this  court. 

The  information  charges,  with  proper  allegations  of  time  and  place, 
that  the  respondent,  a  single  man,  carnally  knew  one ,  a  mar- 
ried woman,  then  and  there  having  a  lawful  husband  living,  naming 
him,  and  not  then  and  there  being  the  wife  of  the  respondent,  and 
that  he  did  then  and  there  commit  the  crime  of  adultery  with  the  said 

.     The  contention  of  the  respondent  is  that  a  singe  man  who 

has  illicit  sexual  intercourse  with  a  married  woman  is  not  guilty  of 
adultery,  in  the  absence  of  a  statute  to  that  effect.  This  claim  finds 
support  among  some  text-writers  and  in  the  decisions  of  a  few  states 
cited  in  respondent's  brief.  See  Bish.  on  Stat.  Crimes,  pars.  655- 
657;  2  Greenleaf  on  Ev.  par.  48;  Respublica  v.  Roberts,  1  Yeates 
(Pa.)  6;  Com.  v.  Lafferty,  6  Grat.  (47  Va.)  672;  Hunter  v.  U.  S.,  1 
Pin.  (Wis.)  91,  39  Am.  Dec.  277.  While  reference  to  the  question  has 
been  made  in  our  decisions,  it  appears  never  before  to  have  been 
squarely  raised  in  this  state.  The  question  turns  upon  the  definition  of 
the  term  "adultery,"  as  used  in  P.  S.  5881,  upon  which  this  prosecu- 
tion is  based.  This  statute  does  not  define  the  oft'ense,  but  punishes 
what  was  known  as  adultery  under  the  common  law,  referring  to  it 
by  name ;  so  we  must  look  to  that  source  for  its  definition.  State  v. 
Clark,  83  Vt.  305,  308,  75  Atl.  534,  Ann.  Cas.  1912A,  261. 

7  For  a  discussion  of  principles,  see  Clark  on  Cilminal  Law  (3d  Ed.)  §§  US, 
119. 


222 


OFFENSES   AGAINST   THE    PUBLIC    HEALTH,  SAFETY,  ETC. 


Adultery  was  a  private  wrong  at  the  common  law  as  it  existed  at 
the  time  of  its  adoption  by  our  Legislature,  but  was  an  offense  against 
the  ecclesiastical  law.  As  known  to  the  common  law,  as  distinguished 
from  ecclesiastical  law,  adultery  consisted  of  sexual  intercourse  by  a 
man,  married  or  single,  with  a  married  woman,  not  his  wife.  The 
circumstance  on  which  adultery  depended  at  common  law  was  the  pos- 
sibility of  introducing  spurious  issue ;  in  other  words,  its  tendency  to 
adulterate  the  issue  of  an  innocent  husband  and  turn  the  inheritance 
away  from  his  own  blood  to  that  of  a  stranger.  One  R.  C.  L.  633, 
and  cases  cited.  At  the  same  time  the  ecclesiastical  law  dealt  with  un- 
lawful sexual  commerce  as  a  breach  of  the  marriage  vow,  and  punished 
only  the  married  party  for  adultery,  while  as  to  the  unmarried  person 
the  offense  was  fornication.  Bashford  v.  Wells,  78  Kan.  295,  96  Pac. 
663,  18  L.  R.  A.  (N.  S.)  580,  16  Ann.  Cas.  310,  and  note.  The  latter 
view  of  adultery  is  embodied  in  P.  S.  5882,  which  declares  that  a  mar- 
ried man  and  an  unmarried  woman,  who  commit  an  act  which  would 
be  adultery  if  such  woman  were  married,  shall  each  be  guilty  of  adul- 
tery. State  V.  Clark,  supra.  The  adoption  in  1818  of  what  is  now  P.  S. 
5882,  as  an  amendment  of  the  statute  of  1797,  which  made  adultery 
an  indictable  offense,  clearly  indicates  that  the  common-law,  and  not 
the  ecclesiastical,  meaning  of  the  term  was  employed  in  the  original 
statute,  for  otherwise  the  amendment  would  have  been  unnecessary. 

Consideration  of  the  opposing  theories  of  adultery  at  common  law 
and  in  the  ecclesiastical  courts  makes  it  apparent  that  in  the  former 
there  was  no  reason  for  distinguishing  between  a  married  and  a  single 
man,  the  particeps  being  a  married  woman;  while  in  the  latter  the 
guilt  inhered  in  the  breach  of  the  marriage  vow,  and  so  the  offense 
could  not  be  committed  by  an  unmarried  person,  man  or  woman.  Re- 
spondent's counsel  argues  that  the  amendment  of  1818  shows  that,  but 
for  that  statute  (now  P.  S.  5882),  an  unmarried  particeps  would  not  be 
guilty  of  adultery  in  this  state.  The  argument  loses  sight  of  the  com- 
mon-law theory  of  adultery.  The  amendment  recognized  the  true  the- 
ory, and  extended  our  statute  so  as  to  include  what  would  be  adultery 
by  ecclesiastical  law,  but  in  no  way  restricted  the  common-law  defini- 
tion of  the  term. 

It  remains  to  consider  whether,  under  the  common-law  definition  of 
adultery,  our  statute  makes  both  parties  to  the  act  guilty  of  the  offense, 
or  whether  the  fact  of  marriage  on  the  part  of  the  man  is  material.  On 
this  question  the  common  law  furnishes  no  direct  authority ;  for,  as 
we  have  seen,  adultery  was  not  an  indictable  offense  at  common  law. 
That  the  wrong  involved  the  man  as  well  as  the  unfaithful  wife  is  per- 
fectly apparent.  If  we  recur  to  the  source  from  which  the  common- 
law  idea  of  adultery  sprung,  we  shall  see  that  it  regarded  the  man  and 
woman  alike.  It  found  its  root  in  the  Mosaic  law  which  provided :  "If 
a  man  be  found  lying  with  a  woman  married  to  a  husband,  then  they 
shall  both  of  them  die,  the  man  that  lay  with  the  woman  and  the  wo- 


ADULTERY  223 

man."  Dcut.  xxii,  22 ;  Lev.  xx,  10.  The  common-law  idea  of  adul- 
tery prevailed  in  the  Mosaic  law,  for  by  the  latter  the  man  was  con- 
demned, not  because  he  had  violated  his  matrimonial  vow,  but  "because 
he  hath  humbled  his  neighbor's  wife."     Deut.  xxii,  24. 

Turning  to  the  decisions  of  our  sister  states,  that  have  made  adul- 
tery an  indictable  offense,  without  defining  the  term,  we  discover  a 
well-defined  line  of  cleavage  between  them.  In  the  jurisdictions  hold- 
ing that  a  single  man  is  not  guilty  of  adultery  for  sexual  intercourse 
with  a  married  woman,  there  is  either,  as  was  held  in  Respublica  v. 
Roberts,  supra,  a  compelling  uniform  practice,  or  some  peculiar  lan- 
guage of  the  statute,  or,  what  is  more  often  the  case,  they  adopt  the 
ecclesiastical,  and  not  the  common-law,  definition  of  adultery.  In  those 
jurisdictions  which  adhere  to  the  common-law  definition,  it  is  held  that 
a  single  man  is  guilty  of  adultery,  even  in  the  absence  of  any  express 
declaration  in  the  statute.  State  v.  Wallace,  9  N.  H.  515;  Smither- 
man  v.  State,  27  Ala.  23;  State  v.  Pearce,  2  Blackf.  (Ind.)  318;  State 
V.  Connoway,  Tappan  (Ohio)  90;  note  16  Ann.  Cas.  314;  See  Hood 
V.  State,  56  Ind.  263,  26  Am.  Rep.  21 ;  'State  v.  Weatherby,  43  Me.  258, 
69  Am.  Dec.  59;  Com.  v.  Call,  21  Pick.  (Mass.)  509,  32  Am.  Dec.  284; 
State  V.  Lash,  16  N.  J.  Law,  380,  32  Am.  Dec.  397;    1  R.  C.  L.  631. 

Having  adopted  the  common-law  definition  of  adultery,  we  regard  it 
as  the  settled  law  of  this  state  that  any  man,  married  or  single,  having 
voluntary  sexual  intercourse  with  a  married  woman,  not  his  wife,  is 
guilty  of  adultery  under  P.  S.  5881.  State  v.  Searle,  56  Vt  516;  State 
v.  Bisbee,  75  Vt.  293,  54  Atl.  1081.  The  fact  that  the  question  has 
never  before  reached  this  court  is  a  strong  indication  that  the  profes- 
sion has  not  seriously  doubted  the  view  we  now  adopt.  A  uniform 
practice  of  more  than  a  century,  while  it  does  not  make  the  law,  as  said 
in  Respublica  v.  Roberts,  is  strong  evidence  of  what  the  law  is.  In 
the  statute  as  amended  in  1818  reference  is  made  to  the  parties  in  a 
way  to  indicate  an  intention  to  punish  the  male  particeps  equally  with 
the  woman ;  besides,  although  ever  since  1797  a  single  man  has  been 
deemed  guilty  under  the  so-called  "blanket  act"  and  since  1818  a  single 
woman  having  sexual  intercourse  with  a  married  man  has  been  deemed 
guilty  of  adultery,  a  single  man  having  sexual  intercourse  with  a  mar- 
ried woman  has  been  outside  the  pale  of  the  law,  unless  the  Legislature 
intended  that  both  parties  to  the  act  should  be  equally  guilty  of  adul- 
tery. Taken  together,  these  facts  make  it  doubly  certain  that  under 
the  statute  in  question  marriage  on  the  part  of  the  man  is  wholly  imma- 
terial. Our  conclusion  is  that  the  county  court  did  not  err  in  overrul- 
ing the  respondent's  motion  in  arrest  of  judgment. 

Judgment  that  there  is  no  error  in  the  proceedings,  and  that  the  re> 
spondent  take  nothing  by  his  exception.    Let  execution  be  done. 


224  OFFENSES   AGAINST   THE   PUBLIC   HEALTH,  SAFETY,  ETC. 

STATE  V.  AYLES. 
(Supreme  Court  of  Oregon,  1914.     145  Pac.  19.) 

McNary,  J.^  Convicted  of  adultery  and  sentenced  to  pass  a  term 
of  six  months  in  the  county  jail  of  Multnomah  county,  defendant 
prosecutes  this  appeal,  and  assigns  as  grounds  therefor  the  commis- 
sion by  the  court  of  11  distinct  errors.  On  the  30th  day  of  January 
1913,  defendant  and  Eydia  Mulloy  were  jointly  indicted  for  the  crime 
of  adultery,  committed  as  follows :  "The  said  James  G.  Ayles  and 
Lydia  Mulloy,  on  the  13th  day  of  January,  A.  D.  1913,  in  the  county 
of  Multnomah  and  state  of  Oregon,  not  being  then  and  there  married 
to  each  other,  but  the  said  Lydia  Mulloy  then  and  there  having  a  hus- 
band living  other  than  the  same  James  G.  Ayles,  to  wit,  A.  C.  Mulloy, 
had  carnal  knowledge  together  each  of  the  body  of  the  other,  and 
thereby  committed  adultery  contrary  to  the  statutes  in  such  cases 
made  and  provided,  and  against  the  peace  and  dignity  of  the  state  of 
Oregon."  The  defendants  were  tried  together,  the  jury  returning  a 
verdict  of  guilty  as  to  the  defendant,  and  not  guilty  as  to  Lydia  Mulloy. 

We  read  from  section  2072,  L.  O.  L. :  "A  prosecution  for  the 
crime  of  adultery  shall  not  be  commenced  except  upon  the  complaint 
of  the  husband  or  wife,  or  if  the  crime  be  committed  with  an  unmar- 
ried female  under  the  age  of  twenty  years  upon  the  complaint  of  the 
wife,  or  of  a  parent  or  guardian  of  such  unmarried  female,  and  within 
one  year  from  the  time  of  committing  the  crime,  or  the  time  when 
the  same  shall  come  to  the  knowledge  of  such  husband  or  wife  or 
parent  or  guardian.  When  the  crime  of  adultery  is  committed  between 
a  married  woman  and  an  unmarried  man,  the  man  shall  be  deemed 
guilty  of  adultery  also,  and  be  punished  accordingly." 

Returning  to  the  indictment,  it  will  be  observed  that  no  mention  is 
made  that  the  action  was  initiated  by  the  husband  of  Lydia  Mulloy. 
The  introductory  part  of  the  indictment  merely  recites  that:  "James 
Ayles  and  Lydia  Mulloy  are  accused  by  the  grand  jury  of  the  county 
of  Multnomah  and  state  of  Oregon  by  this  indictment  of  the  crime  of 
adultery." 

Notwithstanding  the  statutory  command  that  the  prosecution  shall 
be  commenced  only  upon  the  complaint  of  the  injured  spouse,  the 
cases  hold  that  it  is  not  necessary  to  allege  such  facts ;  for  evidence 
thereof  may  be  introduced  without  the  averment.  State  v.  Athey,  133 
Iowa,  382,  108  N.  W.  224;  State  v.  Andrews,  95  Iowa,  451,  64  N.  W. 
404 ;  State  v.  Maas,  83  Iowa,  469,  49  N.  W.  1037 ;  People  v.  Isham, 
109  Mich.  72,  67  N.  W.  819;  State  v.  Brecht,  41  Minn.  50,  42  N.  W. 
602 ;   1  Cyc.  956. 

8  I'art  of  the  opinion  is  omitted. 


ADULTERY  225 

It  is  claimed  by  defendant  that  the  trial  court  committed  a  legal  mis- 
take in  advising  the  jury  that,  "if  one  of  the  parties  to  the  illicit  inter- 
course is  guilty,  then  both  are  guilty  of  adultery."  Some  courts  ad- 
vance the  doctrine  that,  after  the  acquittal  of  one  of  the  defendants 
in  a  joint  charge  of  adultery,  there  can  be  no  conviction  of  the  other. 
This  is  not  in  accord  with  the  better  authorit}',  and  the  proper  rule  ap- 
pears to  be  that  the  acquittal  of  one  of  the  defendants  is  no  bar  to 
the  prosecution  and  conviction  of  the  other  defendant.  While  it  is 
true  that,  to  constitute  adultery,  there  must  be  a  joint  physical  act, 
it  is  not  necessary  that  there  should  be  a  joint  criminal  intent.  One 
party  may  be  guilty  and  the  other  innocent,  though  the  joint  physical 
act  necessary  to  constitute  adultery  is  complete.  State  v.  Eggleston,  45 
Or.  346,  77  Pac.  738 ;  State  v.  Cutshall,  109  N.  C.  764,  14  S.  E.  107, 
26  Am.  St.  Rep.  599;  Commonwealth  v.  Bakeman,  131  Mass.  577,  41 
Am.  Rep.  248;  1  R.  C.  L.  644.  Unquestionably,  the  trial  court  missed 
the  law  when  he  told  the  jury  that,  "if  one  of  the  defendants  is  guilty, 
then  both  are  guilty."  However,  we  fail  to  discern  where  this  in- 
struction injuriously  affected  the  defendant,  because  it  is  a  more  fav- 
orable statement  than  the  law  sanctions  or  than  defendant  might  ex- 
pect. In  a  case  where  the  court  erroneously  instructs  the  jury  to  the 
advantage  of  defendant,  and  the  jury  acts  in  accordance  wath  the  law 
and  in  disregard  of  the  instructions,  the  defendant  cannot  be  heard  to 
say  that  he  has  been  injured. 

Defendant's  strongest  contention  is  that  the  court  erred  in  refusing 
to  admit  evidence  tending  to  show  that  the  husband  of  Lydia  Mulloy 
connived  with  and  abetted  defendant  in  the  commission  of  the  act  of 
adultery.  Defendant  invokes  the  benefit  of  the  same  theory  in  the 
following  requested  instruction :  "I  instruct  you  that,  if  you  find  from 
the  evidence  that  the  prosecuting  witness,  A.  C.  IMulloy,  the  husband 
of  Lydia  L.  Mulloy,  one  of  the  defendants  herein,  acquiesced  in  or 
assented  to  the  act  or  acts  of  sexual  intercourse  between  the  defend- 
ants, Lydia  L.  Mulloy  and  James  G.  Ayles,  if  you  find  any  act  or  acts 
of  sexual  intercourse  between  said  defendants  did  occur,  then  you 
should  find  the  defendant  James  G.  Ayles  not  guilty." 

An  outline  of  the  testimony  proffered  by  defendant  is :  That  the  de- 
fendant Lydia  Mulloy,  when  a  girl  under  17  years  of  age,  was  seduced 
by  A.  C.  Mulloy,  who  subsequently  married  her  in  order  to  cover  the 
infamy  of  the  crime ;  that  since  the  time  of  their  marriage  the  hus- 
band has  .been  seeking  to  invent  grounds  for  a  separation  and  divorce ; 
that  he  insisted  upon  his  wife  remaining  alone  in  the  house  with  de- 
fendant while  he  (Mulloy)  absented  himself  therefrom ;  that  the  hus- 
band connived  in  every  imaginable  way  to  throw  his  wife  in  the  com- 
pany of  the  defendant  by  having  defendant  assist  his  wife  in  washing 
dishes  and  helping  her  about  the  kitchen  and  house ;  that  during  some 
festive  occasion  at  Hillsboro  Mr.  Mulloy  entered  a  saloon,  and,  in  the 
piesence  of  several  witnesses,  stated  that  he  had  left  defendant  to 
MiKELL  Cas.Cb.L. — 15 


22G  OFFENSES    AGAINST   THE    PUBLIC    HEALTH,  SAFETY,  ETC. 

bring  his  wife  in  from  the  farm,  and  that  he  "hoped  to  God  he  would 
run  off  with  her" ;  that  defendant  was  solicited  by  Mr.  Mulloy  "to 
have  intercourse  with  his  wife  by  inference  and  innuendos" ;  that  Mul- 
loy stated  in  the  presence  of  defendant,  and  to  him  directly,  that  he 
didn't  care  if  he  caught  somebody  having  connection  with  his  wife,  be- 
cause he  wanted  to  get  a  divorce  from  her ;  that  the  husband  knew  his 
wife  and  defendant  were  going  to  Portland ;  and  that  defendant  had 
assurance  that  he  would  not  be  harmed. 

With  much  pressure  it  is  argued  that,  if  these  things  were  true,  de- 
fendant could  not  be  convicted  of  the  offense,  for  the  reason  that  he 
was  induced  to  commit  the  act.  The  books  abound  with  much  learn- 
ing upon  this  interesting  department  of  the  criminal  law.  Nevertheless 
our  steps  have  not  been  guided  by  the  light  of  adjudged  cases  involv- 
ing the  crime  of  adultery.  Still  we  feel  no  reason  for  hesitating  to  an- 
nounce the  rule  that  seems  to  us  best  adapted  to  the  promotion  of 
justice.     *     *     * 

The  fact  that  the  husband  may  have  been  guilty  of  sinful  conduct 
which  encouraged  the  defendant  to  commit  the  crime  does  not  lessen 
or  in  any  manner  affect  the  wrong  which  society  suffers,  and  public 
policy,  good  morals,  common  decency,  and  considerations  of  justice 
demand  the  punishment  of  the  offense  under  such  circumstances  as 
strongly  as  though  the  crime  had  been  committed  by  stealth  and 
through  the  employment  of  agencies  unknown  to  the  husband.  For 
these  reasons  the  evidence  was  properly  excluded,  and  instructions 
properly  refused.  Well  may  we  add  that,  if  the  rejected  testimony  is 
true,  offended  justice  has  not  yet  been  fully  vindicated.     *     *     * 

There  are  a  few  additional  questions  presented  on  behalf  of  defend- 
ant, and  which  we  have  examined,  and  deem  them  not  of  sufficient  im- 
portance to  require  separate  notice;  therefore  the  judgment  of  con- 
viction is  affirmed. 


IV.  Lewdness  and  Illicit  Cohabitation* 


UNITED  STATES  v.  SNOW. 
(Supreme  Court  of  Utah,  ISSG.    4  Utali,  2S0,  9  Pac.  501.) 

Appeal  from  a  judgment  of  the  district  court  of  the  first  district, 
and  from  an  order  refusing  a  new  trial.     *     *     * 

Zane,  C.  J.^'^  The  defendant  was  convicted  of  the  crime  of  unlaw- 
ful cohabitation  and  sentenced  to  imprisonment  in  the  penitentiary  for 

0  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §  122. 
10  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


LEWDNESS   AXD    ILLICIT   COHABITATION  227 

the  term  of  six  months,  and  to  pay  a  fine  of  three  hundred  dollars  and 
the  costs  of  the  prosecution.  From  this  judgment  he  has  appealed  to 
this  court,  and  insists  that  the  evidence  is  insufficient  to  justify  the 
verdict. 

At  the  commencement  of  the  trial  the  defendant  admitted  before  the 
court  and  jury  that  he  had  married  each  of  the  seven  women  named  in 
the  indictment ;  had  not  been  divorced  from  either,  and  that  he 
claimed  all  of  them  as  his  wives  and  furnished  them  support.     *     *     * 

It  appears  from  the  evidence  that  appellant  boards  and  lodges  with 
his  last  wife,  and  visits  his  other  wives  occasionally,  though  not  very 
often ;  that  during  the  year  1885  he  has  not  lodged  or  taken  a  meal 
with  any  one  of  the  others ;  that  he  furnishes  them  houses  to  live  in, 
and  supports  them ;  that  he  introduces  them  publicly  as  his  wives,  and 
by  his  language  and  conduct  holds  them  out  to  the  world  as  such.  The 
evidence  proved  beyond  controversy  that  defendant  cohabits  with  his 
polygamous  wife  Minnie.  The  remaining  fact  to  find  from  the  evi- 
dence is.  Has  he  at  any  time  during  the  year  1885  cohabited  with  the 
other  women  named  in  the  indictment,  or  any  one  of  them?  It  ap- 
pears from  the  evidence  that  defendant  is  seventy-two  years  old,  and 
has  married  nine  \vives,  and  that  seven  of  those  wives  are  still  living. 
To  the  first  he  was  married  in  his  youth.  As  his  passion  for  one  wife 
became  satiated,  and  dulled  by  indulgence  and  gratification,  and  as  his 
lust  was  again  kindled  by  the  appearance  of  a  younger  and  fresher,  or 
possibly  a  more  attractive  woman,  he  would  marry  again  until  his  mar- 
riages have  been  repeated  nine  times,  and  now,  at  the  age  of  seventy- 
two  years,  he  is  found  with  seven  living  wives — the  last  being  compara- 
tively young,  with  an  infant  in  her  arms.  He  furnishes  homes  for, 
supports,  associates  with,  claims,  holds  out,  and  flaunts  in  the  face  of 
society  all  these  seven  women  as  his  wives.  And  Vet  he  says  he  co- 
habits with  but  one.  The  law  must  characterize  his  relation  to  them, 
and  his  intercourse  and  association  with  them.  Let  us  consider  the 
case  with  respect  to  Sarah,  his  lawful  wife. 

A  lawful  marriage  of  itself  affords  a  strong  presumption  of  matri- 
monial cohabitation,  because  such  cohabitation  is  in  accordance  with 
duty  and  usually  attends  such  a  marriage.  When  to  this  presumption 
are  added  the  further  inferences  from  the  following  facts :  that  de- 
fendant claimed  Sarah  all  the  time  as  his  wife,  and  that  she  claims  to 
be  such ;  that  he  provides  for  her  a  home,  and  the  necessaries  and 
comforts  of  life;  that  they  were  on  good  terms;  that  he  took  her  to 
the  theatre,  out  riding,  visited  her  occasionally  at  her  home,  and  was 
the  father  of  her  children — the  conclusion  removes  every  reasonable 
doubt  that  he  cohabited  with  her  as  his  wife.  When  they  were  as- 
sociating together  she  was  not  his  paramour  or  his  friend  simply — he 
then  had  and  still  has  all  the  rights  and  opportunities  of  a  husband, 
and  she  those  of  a  wife.    They  were  living  together.    Under  such  cir- 


228  OFFENSES   AGAINST   THE    PUBLIC    HEALTH,  SAFETY,  ETC. 

cumstances  the  law  will  not  permit  them  to  say  they  were  together 
merely  as  friends,  and  not  as  husband  and  wife. 

It  is  not  essential  to  matrimonial  cohabitation  that  the  parties  should 
be  together  all  the  time  if  their  intercourse  and  relations  are  agreeable 
and  they  associate  together  some  part  of  the  time.  In  that  case  the 
law  does  not  notice  the  intervals  of  separation.  Owing  to  the  necessi- 
ties of  human  life,  and  the  claims  of  business  and  trade,  married  peo- 
ple are  often  in  each  other's  company  less  for  long  periods  than  the 
defendant  and  his  wife  Sarah  were  during  the  year  1885,  and  yet  they 
are  regarded  as  cohabiting  as  man  and  wife.  Such  is  often  the  case 
with  mariners,  traveling  salesmen,  and  other  classes  of  persons  that 
could  be  mentioned.  They  associate  at  long  intervals,  and  are  re- 
garded as  cohabiting.     *     *     * 

In  construing  the  term  "cohabitation,"  as  used  in  the  act  under  con- 
sideration, the  supreme  court  of  the  United  States  say,  in  the  case  of 
Cannon  v.  United  States,  116  U.  S.  55,  6  Sup.  Ct.  278,  29  L.  Ed.  561 : 
"It  is  the  practice  of  unlawful  cohabitation  with  more  than  one  woman 
that  is  aimed  at — a  cohabitation  classed  with  polygamy  and  having  its 
outward  semblance.  It  is  not,  on  the  one  hand,  meretricious  unmarital 
intercourse  with  more  than  one  woman.  General  legislation  as  to  lewd 
practices  is  left  to  the  territorial  government ;  nor,  on  the  other  hand, 
does  the  statute  pry  into  the  intimacies  of  the  marriage  relation.  But 
it  seeks  not  only  to  punish  bigamy  and  polygamy,  when  direct  proof 
of  the  existence  of  those  relations  can  be  made,  but  to  prevent  a  man 
from  flaunting  in  the  face  of  the  world  the  ostentation  and  opportuni- 
ties of  a  bigamous  household  with  all  the  outward  appearance  of  the 
continuance  of  the  same  relations  which  existed  before  the  act  was 
passed,  and  without  reference  to  what  may  occur  in  the  privacy  of 
those  relations."     *     *     * 

The  evidence  against  the  defendant  shows  one  of  the  most  aggra- 
vated cases  and  worst  examples  of  polygamy.  He  has  one  lawful  and 
six  plural  wives  living,  and  all  of  them  he  maintains  and  publicly  ac- 
knowledges by  introducing  them  as  such;  but  claims  that  he  is  co- 
habiting with  but  one  and  visiting  the  others  when  he  pleases.  We  are 
of  the  opinion,  that  the  evidence  was  sufficient  to  justify  the  ver- 
dict.    *     *     * 

After  a  careful  examination  of  this  record  we  find  no  ground  suffi- 
cient to  reverse  the  judgment  of  the  district  court,  and  it  is  therefore 
affirmed. 


INCEST  229 


V.  Incest^* 


STATE  V.  ELLIS. 

(Supreme  Court  of  Missouri,  ISSl.    74  Mo.  385,  41  Am.  Rep.  321.) 

Henry,  J.  The  defendant  was  indicted  for  incest,  and  found  guilty 
at  the  March  term,  1881,  of  the  St.  Louis  criminal  court,  and  the  judg- 
ment of  that  court  having  been  affirmed  by  the  Court  of  Appeals,  he 
has  appealed  to  this  court.  The  alleged  incest  was  the  commission  of 
fornication  with  Mary  Belle  Ellis,  his  daughter,  and  she  testified  that 
he  had  frequently  had  sexual  connection  with  her,  but  "that  he  made 
her  do  it,"  and  that  "she  did  not  tell  of  it  because  afraid  that  he  would 
beat  her — that  he  threatened  to  beat  her  if  she  told  any  one."  At  the 
time  of  the  connection  alleged  in  the  indictment  she  was  over  twelve 
years  of  age.  The  crime  alleged  is  punishable  by  imprisonment  in  the 
penitentiary  for  a  term  not  exceeding  seven  years.  The  court  in- 
structed the  jury  that:  "If  defendant  is  the  natural  parent  of  the  girl, 
Mary  Belle  Ellis,  and  at,  etc.,  *  *  *  he  did  feloniously  and  in- 
cestuously  commit  fornication  with  her,  by  actually,  and  with  full 
knowledge  of  the  relationship,  etc.,  having  carnal  knowledge  of  her 
person,  whether  with  or  without  her  consent,  you  will  find  him  guilty 
of  incest." 

By  section  1253  the  crime  of  rape  is  punishable  by  death  or  imprison- 
ment in  the  penitentiary  for  a  term  not  less  than  five  years.  The  crime 
of  incest  is  punishable  by  imprisonment  in  the  penitentiary  only.  Rev. 
St.  1879,  §  1538.  The  crime  of  rape  is  of  a  higher  nature  than  that  of 
incest,  and,  when  the  evidence  proves  the  commission  of  rape,  the  party 
cannot  be  convicted  of  incest.  The  lower  is  merged  into  the  higher 
crime.  It  was  so  held  in  People  v.  Harriden,  1  Parker,  Cr.  R.  (N.  Y.) 
344 ;  Croghan  v.  State,  22  Wis.  444 ;  De  Groat  v.  People,  39  Mich. 
124;  State  v.  Thomas,  53  Iowa,  214,  4  N.  W.  908.  The  case  of  Com. 
V.  Moses  Goodhue,  2  Mete.  (Mass.)  193,  was  one  in  which  the  defend- 
ant was  indicted  for  a  rape,  and  it  was  held  that  he  might  be  convicted 
of  incest  on  that  indictment.  This  was  under  a  section  of  the  statute 
of  that  state  which  was  held  by  the  court  to  sanction  that  ruling;  but 
it  was  also  decided  that  the  jury  could  return  such  a  verdict  only  in 
case  they  should  not  find  that  the  rape  was  proved. 

We  do  not  hold  it  necessary  that  both  parties  must  be  guilty  of  the 
crime  of  incest  before  the  guilty  one  can  be  convicted.  For  instance, 
if  in  this  case,  the  defendant  was  aware  of  the  relationship  between 

11  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §  123. 


230  OFFENSES    AGAINST   THE    PUBLIC    HEALTH,  SAFETY,  ETC. 

him  and  Mary  Belle,  and  she  was  ignorant  of  it,  he  would  be  guilty 
and  punishable  under  the  statute,  if  the  illicit  connection  was  by  mu- 
tual consent,  although  she  could  not  have  been  guilty  of  incest  because 
ignorant  of  the  relationship  existing  between  her  and  the  defendant. 
Whether  the  defendant  had  sexual  intercourse  with  his  daughter  with 
her  consent,  was  a  question  which  should  have  been  submitted  to  the 
jury,  wdth  a  direction  to  convict,  if  satisfied  that  she  consented,  and 
to  acquit  the  defendant  if  he  forced  her  to  submit. 

We  think  the  objections  to  the  indictment  cannot  be  sustained,  and 
the  reasons  for  so  holding  are  well  stated  by  the  court  of  appeals  in 
its  opinion  delivered  in  this  case.  For  the  error  in  the  instruction 
above  noted,  the  judgment  is  reversed  and  the  cause  remanded.  All 
concur,  except  Norton,  J.,  who  dissents. 


VI.  Seduction" 


STATE  V.  BROCK. 

(Supreme  Court  of  Missouri,  1005.    186  Mo.  457,  S5  S.  W.  595, 
105  Am.  St.  Rep.  625,  2  Aun.  Cas.  76S.) 

Burgess,  P.  J.^^  The  defendant  was  convicted  in  the  circuit  court 
of  Polk  county,  and  his  punishment  fixed  at  a  fine  of  $300,  and  impris- 
onment for  30  days  in  the  county  jail  of  said  county,  under  an  infor- 
mation filed  by  L.  Cunningham,  the  prosecuting  attorney  of  said  coun- 
ty, with  the  clerk  of  the  circuit  court  of  said  county,  on  the  4th  day  of 
August,  1903,  charging  him  with  having  feloniously,  under  promise  of 
marriage,  seduced  and  debauched  one  Iva  Fender,  an  unmarried  fe- 
male of  good  repute  and  under  21  years  of  age.  Defendant  ap- 
peals.    *     *     * 

The  point  is  made  that  at  the  time  of  the  alleged  contract  of  marriage 
the  defendant  was  under  age,  and  incapable  of  entering  into  a  valid 
contract  of  that  character,  and  therefore  was  not  guilt}^  and  could  not 
have  been  guilty,  of  the  crime  of  seducing  and  debauching  the  prose- 
cuting witness  under  promise  of  marriage.  But  we  are  unable  to  ap- 
preciate the  force  of  this  contention.  The  statute  (section  1844,  Rev. 
St.  1899)  is  leveled  at  any  person  who  shall,  under  or  by  promise  of 
marriage,  seduce  or  debauch  any  unmarried  female  of  good  repute  and 
under  21  years  of  age,  thus  ignoring  entirely  the  question  of  his  age; 

12  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3(1  Ed.)  §  128. 

13  Fart  of  the  opinion  is  omitted. 


SEDUCTION 


231 


and,  clearly,  the  question  of  the  power  of  such  a  person  to  make  a  val- 
id contract  of  marriage  is  foreign  to  any  issue  in  the  case.  Any  person 
capable  of  seducing  and  debauching  a  female  can  make  a  promise  of 
marriage,  whatever  his  age  may  be,  and  it  is  sufficient  that  he  make 
such  a  promise,  and,  in  consequence  of  it,  commits  the  crime.  It  is 
idle  to  say  that  the  defendant  was  not  capable  of  making  such  a  prom- 
ise at  the  time  alleged  in  the  information,  although  he  may  not  have 
been  competent,  because  of  his  minority,  to  make  a  valid  contract — such 
a  one  as  he  could  have  been  compelled  by  legal  proceeding  to  comply 
with  or  to  respond  in  damages  for  its  violation.  It  would  be  strange, 
indeed,  if  a  person  could  in  this  way  violate  both  law  and  morals,  and 
not  be  held  amenable  to  the  law,  but  shield  himself  upon  the  ground 
that  he  was  not  capable  of  making  a  valid  contract.  Such  is  not  the 
law. 

In  behalf  of  the  state  the  court  gave  the  usual  instruction  upon  the 
question  of  the  flight  of  the  defendant  for  the  purpose  of  avoiding  ar- 
rest for  the  crime  with  which  he  is  charged,  which  it  is  earnestly  in- 
sisted was  unauthorized  by  the  evidence,  and  should  not  have  been 
given.  But  we  are  unable  to  concur  in  this  position.  On  the  contrary, 
we  think  the  evidence,  without  repeating  it,  well  warranted  the  instruc- 
tion ;   hence  it  was  not  erroneous.     *     *     * 

For  the  reasons  stated,  we  are  of  the  opinion  that  the  judgment 
should  be  affirmed.     It  is  so  ordered.     All  concur. 


COMMONWEALTH  v.  HODGKINS. 

(Court  of  Appeals  of  Kentucky,  1901.    Ill  Ky.  584,  64  S.  W.  414, 

23  Ky.  Law  Rep.  829.) 

Floyd  Hodgkins  was  acquitted  of  the  offense  of  seduction,  and  the 
Commonwealth  appeals. 

Du  RellE,  J.  Appellee,  having  been  indicted  under  section  1214 
of  the  Kentucky  Statutes,  at  the  conclusion  of  the  commonwealth's  tes- 
timony, moved  the  court  for  a  peremptory  instruction  to  the  jury  to 
find  him  not  guilty,  which  motion  was  sustained,  and  the  common- 
wealth has  appealed.  Section  1214  provides:  "Whoever  shall,  under 
promise  of  marriage,  seduce  and  have  carnal  knowledge  of  any  female 
under  twenty-one  years  of  age,  shall  be  guilty  of  a  felony,  and  upon 
conviction  thereof,  shall  be  confined  in  the  penitentiary  not  less  than 
one  year  nor  more  than  five  years.  No  prosecution  shall  be  instituted 
when  the  person  charged  shall  have  married  the  girl  seduced;  and 
any  prosecution  instituted  shall  be  discontinued,  if  the  party  accused 
marry  the  girl  seduced  before  final  judgment." 

The  prosecutrix,  upon  direct  examination,  testified  to  facts  which 
would  have  amply  justified  the  submission  of  the  case  to  the  jury,  viz. : 


232  OFFENSES   AGAINST   THE    PUBLIC    HEALTH,  SAFETY,  ETC. 

That  appellee  seduced  her  under  promise  of  marriage,  and  by  means 
of  such  promise ;  that  at  the  time  of  the  seduction  she  was  18  years 
old,  unmarried,  and  chaste;  that  he  repeatedly  visited  her  after  the 
seduction,  and  renewed  his  promise ;  and  that  he  renewed  it  after  she 
became  with  child  by  him,  but  had  finally  refused  to  marry  her.  But 
she  admitted  that  several  months  after  the  seduction  appellee  met  her 
in  company  with  one  Libbs,  a  friend  of  his,  and  after  some  persua- 
sion she  took  a  drive  in  Libbs'  buggy,  to  which  appellee's  horse  had 
been  hitched,  and  in  the  course  of  the  drive  Libbs  had  carnal  knowl- 
edge of  her  by  force ;  that  she  made  outcry  at  the  time,  but  did  not 
then  or  thereafter  report  the  fact.  She,  however,  admitted  the  fact 
of  her  connection  with  Libbs  upon  this  one  occasion  to  appellee,  upon 
his  charging  her  with  it. 

The  circuit  court  seems  to  have  sustained  the  motion  for  a  peremp- 
tory instruction  upon  the  theory  that  a  prosecution  for  this  offense  is 
analogous  to  an  action  for  a  breach  of  promise  of  marriage,  and  that 
anything  which  would  relieve  a  defendant  in  such  an  action  v;ould  re- 
lieve him  of  the  consequences  of  his  offense  under  this  section.  The 
court  also  seems  to  have  assumed  that  the  statement  of  the  prosecutrix 
to  the  effect  that  Libbs'  connection  with  her  was  forcible  was  entirely 
destroyed  by  her  admission  that  she  made  no  complaint.  Without 
considering  the  latter  question,  we  are  clearly  of  opinion  the  court  was 
in  error  as  to  the  construction  of  the  statute.  The  statute  is  not  a  mere 
means  of  compelling  specific  performance  of  a  contract  to  marry  un- 
der which  seduction  has  been  accomplished.  Its  object  is  to  protect  the 
virtue  of  young  girls.  It  undertakes  to  accomplish  that  by  the  imposi- 
tion of  a  penalty.  For  the  benefit  of  the  injured  party,  a  locus  peni- 
tentiae  is  given  to  the  offender,  so  that  by  making  amends,  as  far  as 
may  be,  for  his  wrong,  he  may  be  relieved  of  its  consequences.  This 
court  has  held  that  if  he  offers  to  marry  her,  she  cannot  by  refusal  de- 
prive him  of  the  benefit  of  the  statutory  proviso.  Com.  v.  Wright,  27 
S.  W.  815,  16  Ky.  Law  Rep.  251.  But  it  is  going  too  far  to  say  that 
her  subsequent  conduct,  possibly  or  probably  induced  by  his  offense, 
and  possibly  or  probably  by  his  collusion,  can  relieve  him  from  the  pe- 
nal consequences  of  crime.  The  statute  is  not  a  mere  attempt  to  en- 
force a  certain  class  of  contracts ;  it  is  legislation  to  suppress  crime. 
By  his  violation  of  the  statute,  he  subjected  himself  to  the  penalty  de- 
nounced, and  he  can  escape  that  penalty  in  the  mode  provided  by  the 
statute,  and  in  no  other. 

No  question  is  presented  here  as  to  the  admissibility  of  testimony 
of  unchaste  conduct  on  the  part  of  the  prosecutrix  soon  after  the  al- 
leged offense,  as  the  evidence  upon  that  subject  was  introduced  by  the 
prosecution. 

For  the  reasons  given,  this  opinion  is  ordered  to  be  certified  to  the 
circuit  court. 


ABORTION  233 


VII.  Abortion  1* 


MILLS  V.  COMMONWEALTH. 

(Supreme  Court  of  Pennsylvania,  1850.     13  Pa.  631.) 

Error  to  the  court  of  quarter  sessions  of  Dauphin  county. 

Mills  had  been  tried  for  an  attempt  to  procure  abortion  of  a  female, 
tried  at  November  sessions,  1849.  Defendant  was  convicted  and  sen- 
tenced to  undergo  punishment  in  the  Dauphin  county  prison  by  sepa- 
rate confinement  at  labor  for  and  during  the  term  of  one  year,  to  com- 
mence and  be  computed  from  the  expiration  of  the  sentence  on  the 
indictment  for  attempting  to  procure  abortion  of  another  female, 
etc.     *     *     * 

Coulter,  J.^^  The  error  assigned  is  that  the  indictment  charges 
the  defendant,  with  intent  to  cause  and  procure  the  miscarriage  and 
abortion  of  the  said  Mary  Elizabeth  Lutz,  instead  of  charging  the 
intent  to  cause  and  produce  the  miscarriage  and  abortion  of  the  child: 
But  it  is  a  misconception  of  the  learned  counsel  that  no  abortion  can 
be  predicated  of  the  act  of  untimely  birth  by  foul  means. 

Miscarriage,  both  in  law  and  philology,  means  the  bringing  forth 
the  foetus  before  it  is  perfectly  formed  and  capable  of  living,  and  is 
rightfully  predicated  of  the  woman,  because  it  refers  to  the  act  of  pre- 
mature delivery.  The  word  "abortion"  is  synonymous  and  equivalent 
to  "miscarriage"  in  its  primary  meaning.  It  has  a  secondary  meaning, 
in  which  it  is  used  to  denote  the  offspring.  But  it  was  not  used  in 
that  sense  here,  and  ought  not  to  have  been.  It  is  a  flagrant  crime  at 
common  law  to  attempt  to  procure  the  miscarriage  or  abortion  of  the 
woman,  because  it  interferes  with  or  violates  the  mysteries  of  nature 
in  that  process  by  which  the  human  race  is  propagated  and  continued. 
It  is  a  crime  against  nature,  which  obstructs  the  fountain  of  life,  and 
therefore  it  is  punished. 

The  next  error  assigned  is  that  it  ought  to  have  been  charged  in  the 
count  that  the  woman  had  become  quick.  But,  although  it  has  been 
so  held  in  Massachusetts  and  some  other  states,  it  is  not,  I  apprehend, 
the  law  in  Pennsylvania,  and  nevef  ought  to  have  been  the  law  any- 
where. It  is  not  the  murder  of  a  living  child  which  constitutes  the  of- 
fense, but  the  destruction  of  gestation  by  wicked  means  and  against 
nature.  The  moment  the  womb  is  instinct  with  embryo  life,  and  gesta- 
tion has  begun,  the  crime  may  be  perpetrated.     The  allegation  in  this 

14  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (Sd  Ed.)  §§ 
129-131. 

15  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


234  OFFENSES    AGAINST   THE    PUBLIC    HEALTH,  SAFETY,  ETC. 

indictment  was  therefore  sufficient,  to  wit:  "That  she  was  then  and 
there  pregnant  and  big  with  child."  By  the  well-settled  and  established 
doctrine  of  the  common  law,  the  civil  rights  of  an  infant  in  ventre  sa 
mere  are  fully  protected  at  all  periods  after  conception,  3  Coke's  In- 
stitutes. A  count  charging  a  wicked  intent  to  procure  miscarriage  of 
a  woman,  "then  and  there  being  pregnant,"  by  administering  potions, 
etc.,  was  held  good  on  demurrer  by  the  Supreme  Court  of  this  state. 
Mss.  Reps.  January,  1846 ;  Whart.  Crim.  Law,  308.  There  was  there- 
fore a  crime  at  common  law  sufficiently  set  forth  and  charged  in  the 
indictment. 

But,  although  we  see  no  error  in  the  record,  the  sentence  must  be 
reformed  on  account  of  certain  proceedings  in  this  court  and  dehors 
this  record.     *     *     * 

Judgment  affirmed  as  modified. 


OFFENSES   AGAINST   PUBLIC   JUSTICE   AND   AUTHORITY  23i 


OFFENSES  AGAINST  PUBLIC  JUSTICE  AND  AUTHORITY 

I.  Obstructing  Justice  * 


STATE  V.  HARTLEY. 
(Supreme  Court  of  Errors  of  Connecticut,  1901.    74  Conn.  64,  49  Atl.  SCO.) 

Thomas  K.  Hartley  was  convicted  of  resisting  and  obstructing  an 
officer  in  the  discharge  of  his  duty,  and  appeals. 

ToRRANCK,  J.  With  reference  to  the  first  count  of  the  complaint, 
it  appears  from  the  record  that  the  state  adduced  substantially  no  evi- 
dence in  proof  of  it,  and  that  the  court  told  the  jury  that  their  verdict 
upon  it  should  be,  "Not  guilty."  The  case  was  thus  in  fact  tried  and 
decided  upon  the  second  count.  In  support  of  that  count  the  material 
acts  which  the  state  claimed  to  have  proved  were,  in  substance,  these : 
On  the  12th  of  November,  1900,  by  virtue  of  a  writ  of  attachment 
against  one  Gevers,  Draper,  a  deputy  sheriff,  attached,  as  the  property 
of  Gevers,  some  household  goods  in  the  house  occupied  by  Gevers. 
The  goods  were  not  removed  from  the  house  by  the  officer,  but  he, 
having  obtained  from  Gevers'  wife,  the  key  to  the  front  door  of  the 
house,  gave  it  to  the  plaintiff  in  the  writ  of  attachment,  as  keeper  of 
the  attached  goods.  On  the  next  day  the  officer  took  the  key  into  his 
own  possession.  Early  in  the  morning  of  the  14th  of  November,  1900, 
the  accused,  who  was  a  truckman,  came  with  his  wagon,  at  the  request 
of  Gevers,  to  remove  said  furniture  to  the  freight  depot.  He  found 
it  outside  of  the  house,  loaded  it  upon  his  wagon,  and  drove  away 
with  it  towards  the  depot.  When  he  had  gone  a  short  distance,  the 
officer,  still  holding  the  writ  of  attachment,  met  him  near  the  Preston 
Bridge,  and  attempted  to  stop  the  team  and  retake  the  goods  in  the 
following  manner:  "He  informed  the  accused  that  the  goods  upon  the 
wagon  were  under  attachment,  and  directed  the  accused  to  stop  his 
team,  under  penalty  of  arrest,  and  to  return  the  goods."  The  accused 
refused  to  stop  his  team,  and  directed  his  assistant  to  drive  on,  and  he 
did  so.  The  officer  then  arrested  the  accused.  The  evidence  for  the 
accused  tended  to  prove  that  the  officer  did  not  attempt  to  retake  or  re- 
attach the  goods  on  the  wagon  at  the  time  he  met  the  accused  near  the 
bridge,  nor  did  he  then  say  to  the  accused  that  he  attached  them,  and 
that  the  accused  did  not  obstruct,  resist,  or  abuse  the  officer  while  in 
the  execution  of  his  office. 

1  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (Gd  Ed.)  §  135. 


236  OFFENSES    AGAINST   PUBLIC   JUSTICE    AND   AUTHORITY 

The  reasons  of  appeal  are  eight  in  number,  but  it  is  unnecessary  to 
•  consider  any  of  them  save  the  last.  That  one  is  based  upon  the  failure 
of  the  court  to  answer  properly  the  question  asked  by  the  foreman  of 
the  jury.  After  the  court  had  charged  the  jury  and  they  had  retired 
to  their  room,  they  came  back,  and  through  their  foreman  said :  "We 
ask  for  instructions  from  the  court  as  to  whether  the  demand  made 
by  the  sheriff  at  the  time  he  met  these  goods  near  the  bridge  consti- 
tuted another  attachment,  or  a  renewal  of  his  attachment."  Prior  to 
this  the  court,  in  its  charge,  had  told  the  jury  that  unless  they  were  sat- 
isfied "that  the  furniture  was  in  the  possession  of  the  officer  when  it 
was  taken  away  from  the  house,  on  the  14th  of  November,  then  the 
accused,  in  assisting  in  its  removal  or  in  attempting  to  remove  it,  was 
not  guilty  of  obstructing  the  officer,"  and  that  "merely  having  the  key 
or  keys  of  the  Gevers'  premises  would  not  necessarily,  of  itself,  con- 
stitute such  possession."  The  court  then  said :  "Now,  even  if  the  at- 
tachment as  originally  made  had  been  invalid  for  any  reason,  or  even 
if  the  possession  had  terminated,  yet  the  officer,  with  the  writ  of  at- 
tachment in  his  hands,  had  a  right  to  attach  anew,  and  to  retain  and 
take  possession  of  these  goods ;  and  the  defendant  had  no  right  to  ob- 
struct or  resist  him  in  the  execution  of  his  office  in  making  attachment, 
or  taking  possession  of  these  goods  when  they  were  upon  his  wagon." 

Upon  the  record,  it  is  quite  apparent  that  two  of  the  important  ques- 
tions for  the  jury  to  determine  were  these:  (1)  Was  the  original  at- 
tachment at  an  end  when  the  accused  took  the  goods  from  where  they 
lay,  outside  of  the  house?  (2)  Did  the  officer  at  the  bridge  make  a 
new  attachment  of  them?  And  it  is  equally  apparent  from  the  ques- 
tion of  the  foreman  that  the  jury  were  laboring  with  the  second  ques- 
tion. In  answer  to  the  foreman's  question  the  court  said:  "If  you  are 
satisfied  from  the  evidence  that  the  sheriff  attempted  to  take  posses- 
sion of  these  goods  upon  the  wagon,  and  that  he  was  interfered  with, 
obstructed,  or  resisted  by  acts  of  the  accused,  then  that  would  consti- 
tute a  breach  of  the  statute ;  but,  if  the  sheriff  did  not  at  that  time  at- 
tempt to  take  the  goods  into  his  possession,  then  the  acts  of  the  ac- 
cused would  not  constitute  a  breach  of  the  statute."  Under  the  cir- 
cumstances, we  think  this  was  not  a  sufficient  answer  to  the  question, 
and  was  liable  to  mislead  the  jury  in  an  important  point  in  the  case. 

The  facts  in  evidence  tended  to  show  that  the  officer  claimed  the 
goods  as  his  under  the  original  attachment,  and  not  under  an  attach- 
ment which  he  had  then  made  or  had  attempted  to  make.  What  he 
said  to  the  accused  was  that  the  goods  were  already  under  attachment 
and  that  for  that  reason  the  accused  must  return  them  to  him  under 
penalty  of  arrest,  and  he  said  nothing  about  attaching  them  anew. 
From  the  foreman's  question,  it  is  evident  that  the  jury  wanted  to 
know,  in  case  that  they  found  that  the  original  attachment  was  at  an 
end,  whether  what  the  officer  said  and  did  near  the  bridge,  about  which 
there  seems  to  have  been  little  or  no  dispute,  "constituted  another  at- 


OBSTRUCTING   JUSTICE  237 

tachment,  or  a  renewal  of  the  first  attachment."  If  the  facts  as  they 
appear  of  record  as  to  what  the  officer  said  and  did  near  the  bridge 
were  substantially  undisputed  at  the  trial,  the  court  should  have  told 
the  jury  that  they  did  not  constitute  another  attachment,  nor  a  re- 
newal of  the  first  attachment ;  and,  if  these  facts  were  in  dispute,  then 
the  court  should  have  instructed  the  jury  as  to  what  acts  would  con- 
stitute a  new  attachment.  If  the  jury  found,  as  upon  the  evidence  they 
well  might,  that  the  first  attachment  was  at  an  end,  and  that  no  second 
attachment  was  made,  then,  under  the  answer  given  to  the  foreman,  if 
they  also  found  that  the  officer  "attempted  to  take  possession"  of  the 
goods  while  on  the  wagon,  and  the  accused  obstructed  him  in  so  doing, 
their  verdict  should  be,  "Guilty."  This  was  clearly  wrong,  and  the 
court  undoubtedly  did  not  intend  to  so  charge ;  for,  if  the  first  attach- 
ment was  at  an  end,  and  no  other  was  made,  the  accused  was  justified 
in  doing  what  he  did. 

There  is  error,  and  a  new  trial  is  granted.    The  other  judges  con- 
curred. 


THE  KING  V.  TIBBITS  AND  WINDUST. 

(Court  for  Consideration  of  Crown  Cases  Reserved,  1901.     [1902]  1  King's 

Bench  Division,  77.) 

Lord  AlvErstonE,  C.  J.^  This  was  a  case  reserved  by  Kennedy, 
J.,  at  the  last  Summer  Assizes  at  Bristol.  Indictments  were  preferred 
against  two  defendants,  Charles  John  Tibbits  and  Charles  Windust. 
The  indictments  contained  sixteen  counts,  upon  each  of  which  the 
defendants  were  found  guilty.  The  charges  contained  in  the  indict- 
ment related  to  the  publication  of  certain  matters  in  a  newspaper  called 
the  Weekly  Dispatch,  between  January  13,  1901,  and  March  4,  1901 
(inclusive),  and  particularly  to  the  issues  of  that  newspaper  dated  re- 
spectively January  13  and  February  3,  1901.  Prior  to  the  publication 
of  the  first  article,  two  persons,  named  Allport  and  Chappell,  had  been 
charged  before  the  magistrate  with  offences  under  the  Prevention  of 
Cruelty  to  Children  Act,  1894.  Further  charges  of  attempting  to  mur- 
der, and  of  conspiracy  to  murder  a  child  named  Arthur  Bertie  Allport, 
and  of  a  conspiracy  to  commit  the  offence  against  section  1  of  the  Pre- 
vention of  Cruelty  to  Children  Act,  1894,  were  preferred  against  them. 
On  February  8  Allport  and  Chappell  were  committed  to  take  their^ 
trial  at  the  next  Bristol  Assizes,  which  had  been  fixed  to  commence  on 
February  20.  Their  trial  on  the  indictment  for  the  attempt  to  mur- 
der commenced  before  Day,  J.,  on  March  1,  and  terminated  on  March  5. 
They  were  found  guilty,  and  sentenced,  Allport  to  fifteen  years'  penal 
servitude  and  Chappell  to  five  years'  penal  servitude.    The  publications 

2  The  statement  of  facts  and  part  of  tlie  opinion  are  omitted. 


238  OFFENSES   AGAINST   PUBLIC   JUSTICE    AND    AUTHORITY 

in  the  Weekly  Dispatch,  which  formed  the  subject  of  the  present  indict- 
ment against  Tibbits  and  Windust,  were  statements  relating  to  the  case 
of  Allport  and  Chappell,  contained  in  the  issues  of  the  Weekly  Dispatch 
during  the  hearing  of  the  case  against  Allport  and  Chappell  before 
the  magistrate,  and  before  and  during  the  trial  of  these  persons  at  the 
assizes.  It  is  unnecessary  to  refer  in  detail  to  any  of  the  incriminated 
articles,  of  which  those  of  January  13  and  February  3  were  the  most 
important.  It  is  sufficient  to  say  that  the  publication  went  far  beyond 
any  fair  and  bona  fide  report  of  the  proceedings  before  the  magistrate. 
They  contained,  couched  in  a  florid  and  sensational  form,  a  number  of 
statements  highly  detrimental  to  Allport  and  Chappell.  Many  of  these 
statements  related  to  matters  as  to  which  evidence  could  not  have  been 
admissible  against  them  in  any  event,  and  purported  to  be  the  result  of 
investigations  made  by  the  "Special  Crime  Investigator"  of  the  news- 
paper. Under  these  circumstances  it  was  contended  on  behalf  of  the 
prosecution  that  there  was  evidence  upon  which  the  jury  might  prop- 
erly convict  both  the  defendants  on  all  the  counts  of  the  indictment. 

Upon  the  argument  before  us  we  had  no  doubt  upon  the  main  ques- 
tions which  had  been  discussed,  but,  having  regard  to  the  nature  of  the 
proceedings  and  the  importance  of  the  case,  we  thought  it  desirable 
tliat  we  should  endeavour  to  lay  down  as  clearly  as  possible  the  law 
applicable  to  such  a  case.  Points  were  raised  and  argued  on  behalf  of 
the  defendant  Windust  as  distinguished  from  the  defendant  Tibbits. 
It  will  be  convenient  to  postpone  the  discussion  of  those  points  until 
we  have  dealt  with  the  main  questions  of  law  raised  on  behalf  of  both 
prisoners.  It  was  not  attempted  to  be  argued  by  Mr.  Foote,  who  ap- 
peared as  counsel  for  both  defendants,  that  the  publication  of  such  ar- 
ticles was  lawful,  and  that  the  persons  publishing  such  articles  could 
not  be  punished.  On  the  contrary,  he  contended  that  the  publication 
of  such  articles  was  a  contempt  of  Court,  and  could  only  properly  be 
punished  as  such  either  by  summary  proceedings  or  indictment  for  con- 
tempt. He  further  urged  that  there  was  no  evidence  of  any  intention 
on  the  part  of  either  of  the  defendants  to  pervert  or  interfere  with 
the  course  of  justice,  and  that  any  inference  which  might  otherwise 
be  drawn  from  the  contents  of  the  articles,  that  they  were  calculated 
to  pervert  or  interfere  with  the  course  of  justice,  was  negatived  by  the 
fact  that  the  defendants  Allport  and  Chappell  had  been  subsequently 
convicted.  That  the  publication  of  such  articles  constituted  a  contempt 
of  Court  and  could  be  punished  as  such,  is  well  established.  One  of 
the  sorts  of  contempt  enumerated  by  Hardwicke,' L.  C,  in  the  year 
1742  is  prejudicing  mankind  against  persons  before  the  case  was  heard, 
and  he  adds  these  important  words :  "There  cannot  be  anything  of 
greater  consequence  than  to  keep  the  realms  of  justice  clear  and  pure 
that  parties  may  proceed  with  safety  both  to  themselves  and  their  char- 
acters." The  case  of  Rex  v.  Jolliffe  shews  that  a  criminal  information 
lay  for  distributing  in  the  assize  town,  before  the  trial  at  Nisi  Prius, 


OBSTRUCTING   JUSTICE  230 

handbills  reflecting  on  the  conduct  of  a  prosecutor,  and,  in  the  course 
of  his  judgment  in  that  case,  Lord  Kenyon  made  the  following  very 
relevant  observations:  "Now  it  is  impossible  for  any  man  to  doubt 
whether  or  not  the  publication  of  these  papers  be  an  offence.  Even 
the  charge  on  the  prosecutor  would  of  itself  warrant  us  to  grant  the 
information ;  but  that  is  a  minor  offence,  when  compared  with  that  of 
publishing  the  papers  in  question  during  the  pendency  of  the  cause  at 
the  assizes,  and  in  the  hour  of  trial.  It  is  the  pride  of  the  constitu- 
tion of  this  country  that  all  causes  should  be  decided  by  jurors,  who 
are  chosen  in  a  manner  which  excludes  all  possibility  of  bias,  and  who 
are  chosen  by  ballot,  in  order  to  prevent  any  possibility  of  their  being 
tampered  with.  But,  if  an  individual  can  break  down  any  of  those 
safeguards  which  the  constitution  has  so  wisely  and  so  cautiously 
erected,  by  poisoning  the  minds  of  the  jury  at  a  time  when  they  are 
called  upon  to  decide,  he  will  stab  the  administration  of  justice  in  its 
most  vital  parts.  And,  therefore,  I  cannot  forbear  saying,  that,  if  the 
publication  be  brought  home  to  the  defendant,  he  has  been  guilty  of  a 
crime  of  the  greatest  enormity."  Again,  in  the  case  of  Rex  v.  Fisher, 
the  printer,  publisher,  and  editor  were  convicted  for  publishing  a  scan- 
dalous, defamatory,  and  malicious  libel,  intending  to  injure  one  Rich- 
ard Stephenson,  charged  with  assault,  and  deprive  him  of  the  benefit 
of  an  impartial  trial,  "and  to  injure  and  prejudice  him  in  the  minds  of 
the  liege  subjects  of  our  lord  the  King  and  to  cause  it  to  be  believed 
that  he  was  guilty  of  the  said  assault  and  thereby  to  prevent  the  due 
administration  of  justice  and  to  deprive  the  said  Richard  Stephenson 
of  the  benefit  of  an  impartial  trial."  It  was  urged  on  behalf  of  the  de- 
fendants that  this  was  an  indictment  for  libel,  and  that,  therefore,  it 
was  no  authority  for  the  indictment  in  the  present  case.  But,  if  the 
judgment  of  Lord  Ellenborough  is  examined,  it  will  be  noted  that  the 
main  ground  of  the  judgment  is  that  the  publication  would  tend  to 
pervert  the  public  mind  and  disturb  the  course  of  justice  and  therefore 
be  illegal,  and  we  cannot  doubt  that,  if  the  attempt  so  to  do  be  made, 
or  means  taken,  the  natural  efifect  of  which  would  be  to  create  a  wide- 
spread prejudice  against  persons  about  to  take  their  trial,  an  ofifence 
has  been  committed,  whatever  the  means  adopted,  provided  there  be 
not  some  legal  justification  for  the  course  pursued.     *     *     * 

We  think  that  the  facts,  which  bring  the  incriminated  articles  within 
the  category  of  misdemeanor,  abundantly  appear  upon  the  face  of 
each  count,  and  that,  under  those  circumstances,  it  is  perfectly  imma- 
terial whether  the  articles  be  described  and  charged  as  libels  or  con- 
tempts or  not.  With  reference  to  the  argument,  which  was  strongly 
urged,  that  there  was  no  evidence  of  any  intention  to  pervert  the 
course  of  justice,  we  are  clearly  of  opinion,  for  the  reasons  given  in 
the  authorities  to  which  we  have  referred,  that  this  is  one  of  the  cases 
in  which  the  intent  may  properly  be  inferred  from  the  articles  them- 
selves and  the  circumstances  under  which  they  were  published.     It 


240  OFFENSES   AGAINST   PUBLIC   JUSTICE    AND    AUTHORITr 

would,  indeed,  be  far-fetched  to  infer  that  the  articles  would  in  fact 
have  any  effect  upon  the  mind  of  either  magistrate  or  judge,  but  the 
essence  of  the  offence  is  conduct  calculated  to  produce,  so  to  speak,  an 
atmosphere  of  prejudice  in  the  midst  of  which  the  proceedings  must 
go  on.  Publications  of  that  character  have  been  punished  over  and 
over  again  as  contempts  of  Court,-  where  the  legal  proceedings  pending 
did  not  involve  trial  by  jury,  and  where  no  one  would  imagine  that 
the  mind  of  the  magistrates  or  judges  charged  with  the  case  would  or 
could  be  induced  thereby  to  swerve  from  the  straight  course.  The  of- 
-fence  is  much  worse  where  trial  by  jury  is  about  to  take  place,  but  it 
certainly  is  not  confined  to  such  cases.  We  further  think  that,  if  the 
articles  are  in  the  opinion  of  the  jury  calculated  to  interfere  with  the 
course  of  justice  or  pervert  the  minds  of  the  magistrate  or  of  the 
jurors,  the  persons  publishing  are  criminally  responsible:  see  Reg.  v. 
Grant,  (1).  We  are  also  of  opinion  that  the  fact  that  AUport  and 
Chappell,  the  persons  referred  to,  were  subsequently  convicted  can 
have  no  weight  in  the  decision  of  the  question  now  before  us.  To  give 
effect  to  such  a  consideration  would  involve  the  consequence  that  the 
fact  of  a  conviction,  though  resulting,  either  wholly  or  in  part,  from 
the  influence  upon  the  minds  of  the  jurors  at  the  trial  of  such  articles 
as  these,  justifies  their  publication.  This  is  an  argument  which  we 
need  scarcely  say  reduces  the  position  almost  to  an  absurdity,  and,  in- 
deed, its  chief  foundation  would  appear  to  be  a  confusion  between  the 
course  of  justice  and  the  result  arrived  jit.  A  person  accused  of  crime 
in  this  country  can  properly  be  convicted  in  a  Court  of  Justice  only 
upon  evidence  which  is  legally  admissible  and  which  is  adduced  at 
his  trial  in  legal  form  and  shape.  Though  the  accused  be  really  guilty 
of  the  offence  charged  against  him,  the  due  course  of  law  and  jus- 
tice is  nevertheless  perverted  and  obstructed  if  those  who  have  to  try 
him  are  induced  to  approach  the  question  of  his  guilt  or  innocence  with 
minds  into  which  prejudice  has  been  instilled  by  published  assertions 
of  his  guilt  or  imputations  against  his  life  and  character  to  which  the 
laws  of  the  land  refuse  admissibility  as  evidence.  *  *  * 
Conviction  affirmed. 


PRISON    BREACH  241 


II.  Prison  Breach  * 


STATE  V.  DOUD. 
(Supreme  Court  of  Connecticut,  1S29.    7  Conn.  384.) 

Peters,  J.*  By  the  common  law,  all  immoral  acts,  which  tend  to 
the  prejudice  of  the  community,  are  offences,  and  punishable  by  courts 
of  justice.  They  are  denominated  crimes  and  misdemeanors.  The 
former  comprehend  the  more  aggravated  offences,  which  are  nearly 
allied  and  equal  in  guilt  to  felony,  whereof  the  superior  court  formerly 
assumed  jurisdiction ;  the  latter,  inferior  offences,  whereof  the  su- 
perior and  inferior  courts  have  occasionally  taken  cognizance.  But 
now,  by  statute,  the  Superior  Court  alone  has  jurisdiction  of  all  of- 
fences at  common  law.  Stat.  29,  Ed.  1784;  172,  Ed.  1821 ;  191,  Sess. 
1828;  Knowles  v.  State,  3  Day,  103;  2  Swift's  Syst.  366;  Swift's 
Dig.  257 ;  State  v.  Howard,  1  Com.  Rep.  475 ;  Rex  v.  Higgins,  2 
East,  5. 

By  the  ancient  common  law,  prison  breaches  were  felonies,  if  the 
party  were  lawfully  imprisoned,  for  any  cause  whatever,  whether  civil 
or  criminal,  and  whether  he  were  actually  within  the  walls  of  a  prison, 
or  in  the  stocks,  or  in  the  custody  of  a  person  who  had  lawfully  ar- 
rested him.  2  Hawk.  P.  C.  c.  18,  s.  i.  And  it  hath  been  holden,  by 
all  the  judges  of  the  King's  Bench,  that  though  a  prisoner  departs  from 
prison,  with  the  keeper's  license,  it  is  an  offence  punishable  as  well  in 
the  prisoner  as  in  the  keeper.  Hobart  and  Stroud's  Case,  Cro.  Car. 
209.  The  same  doctrine  is  laid  down  by  Sir  William  Blackstone,  4 
Com.  129;  and  it  is  sanctioned  by  the  late  Ch.  J.  Swift,  2  Sw.  Dig. 
325.  The  escape  of  a  person  lawfully  arrested,  by  eluding  the  vigilance 
of  his  keepers,  before  he  is  put  in  hold  or  in  prison,  is  an  offence 
against  public  justice;  and  the  party  himself  is  punishable  by  fine  and 
imprisonment.  For  however  strong  and  natural  desire  of  liberty  may 
be,  yet  every  man  is  bound  to  submit  himself  to  the  restraints  of  the 
law.    2  Sw.  Dig.  325 ;  4  Bla.  Com.  129. 

I  am,  therefore,  of  opinion,  that  the  information  is  sufficient;  and 
as  the  prisoner  is  not  charged  with  breaking  the  prison,  or  any  other 
actual  violence,  in  effecting  his  escape,  I  advise,  that  he  be  subjected 
to  the  usual  common  law  punishment,  fine  and  imprisonment,  one  or 

s  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §§ 
137-139. 

4  The  statement  of  facts  is  omitted, 

MiKELL  Cas.Cb.L. — 16 


243  OFFENSES    AGAINST   PUBLIC   JUSTICE    AND    AUTHORITY 

both,  at  the  discretion  of  the  Superior  Court,  not  exceeding  the  punish- 
ment from  which  he  escaped. 

The  other  Judges  were  of  the  same  opinion,  WiUiams,  J.,  intimating 
some  doubts. 

Information  sufficient. 


III.  Bribery 


STATE  V.  ELLIS. 

(Supreme  Court  of  New  Jersey,  1S6S.     33  N.  J.  Law,  102,  97  Am.  Dec.  707.) 

Dalrimple:,  J.  The  indictment  in  this  case  was  removed  into  this 
court  by  certiorari  to  the  sessions  of  Hudson.  It  sets  forth  in  sub- 
stance, in  language  sufficiently  plain  and  intelligible,  that  application 
having  been  duly  made  to  the  common  council  of  Jersey  City  for  leave 
to  lay  a  railroad  track  along  one  of  the  public  streets  of  that  city,  the 
defendant  wickedly  and  corruptly  offered  to  one  of  the  members  of 
said  common  council  the  sum  of  fifty  dollars  to  vote  in  favor  of  said 
application.  Upon  return  of  the  certiorari,  a  motion  was  made  to 
quash  the  indictment,  on  the  ground  that  the  facts  set  forth  do  not  con- 
stitute a  crime. 

It  is  said  that  the  common  law  offence  of  bribery  can  only  be  predi- 
cated of  a  reward  given  to  a  judge  or  other  official  concerned  in  the 
administration  of  justice.  The  earlier  text  writers  thus  define  the  of- 
fence: "Where  any  man  in  judicial  place  takes  any  fee  or  pension, 
robe  or  livery,  gift,  reward  or  brocage,  of  any  person,  that  hath  to  do 
before  him  in  any  way,  for  doing  his  office,  or  by  color  of  his  office,  but 
of  the  king  only,  unless  it  be  meat  and  drink,  and  that  of  small  value." 
3  Inst.  145.  The  definition  in  4  Blackstone's  Com.  139,  is  to  the  same 
effect.  Hawkins,  in  his  Pleas  of  the  Crown,  vol.  1,  p.  312,  gives,  sub- 
stantially, the  same  description  of  the  offence,  but  adds :  "Also,  bribery 
signifies  the  taking  or  giving  of  a  reward  for  offices  of  a  public  na- 
ture." The  later  commentators,  supported,  as  I  think,  by  the  adjudged 
cases,  however,  maintain  the  broader  doctrine,  that  any  attempt  to  in- 
fluence an  officer  in  his  official  conduct,  whether  in  the  executive,  leg- 
islative, or  judicial  department  of  the  government,  by  the  offer  of  a 
reward  or  pecuniary  consideration,  is  an  indictable  common  law  mis- 
demeanor. 3  Greenleaf's  Ev.  par.  71 ;  Bishop  on  Criminal  Law,  vol. 
1,  par.  95,  and  notes;   1  Russell  on  Crimes,  156. 

The  case  of  Rex  v.  Vaughan,  4  Burr.  2494,  arose  upon  motion  for 
an  information  for  a  misdemeanor  against  the  defendant  for  offering 

t  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §  144. 


BRIBERY  243 

money  to  the  Duke  of  Grafton,  First  Lord  of  the  Treasury,  to  procure 
the  defendant's  appointment  by  the  Crown  to  an  office.  Lord  Mans- 
field, in  his  opinion  in  that  case,  says:  "If  these  transactions  are  be- 
Heved  to  be  frequent,  it  is  time  to  put  a  stop  to  them.  A  minister, 
trusted  by  the  king  to  recommend  fit  persons  to  offices,  would  betray 
that  trust,  and  disappoint  that  confidence,  if  he  should  secretly  take 
a  bribe  for  that  recommendation."  The  motion  was  granted.  In  the 
case  of  Rex  v.  Plympton,  2  Lord  Raymond,  1377,  the  court  held  that 
it  was  an  ofifence  to  bribe  persons  to  vote  at  election  of  members  of 
a  corporation.  Many  other  cases  might  be  cited  in  support  of  the  gen- 
eral proposition  laid  down  by  the  later  text  writers  above  referred  to. 
The  cases  will,  however,  all  be  found  collated  in  2d  Bishop's  Criminal 
Law,  in  the  notes  to  par.  76  and  77 .  Indeed,  the  authorities  seem  to 
be  all  one  way.  Neither  upon  principle  nor  authority  can  the  crime  of 
bribery  be  confined  to  acts  done  to  corrupt  officers  concerned  in  the 
administration  of  justice.  If  in  the  case  now  before  us,  it  was  no 
crime  for  the  defendant  to  offer,  it  would  have  been  no  crime  for  the 
councilman  to  accept  the  bribe.  The  result  would,  therefore,  be  that 
votes  of  members  of  council  on  all  questions  coming  before  them,  could 
be  bought  and  sold  like  merchandise  in  the  market.  The  law  is  other- 
wise. The  common  law  offence  of  bribery  is  indictable  and  punishable 
in  this  State.  Our  statutes  against  bribery  merely  define  and  fix  the 
punishment  for  the  offence,  in  cases  of  bribery  of  judicial  officers  and 
members  of  the  legislature ;  they  do  not  repeal  or  abrogate,  or  other- 
wise alter  the  common  law. 

It  is  contended,  in  the  next  place,  that  the  facts  set  forth  in  the  in- 
dictment constitute  no  offence,  inasmuch  as  the  common  council  had 
not  jurisdiction  to  grant  the  application  for  which  the  vote  was  sought 
to  be  bought.  In  my  opinion,  it  is  entirely  immaterial  whether  council 
had  or  had  not  jurisdiction  over  the  subject  matter  of  the  application. 
If  the  application  was,  in  point  of  fact,  made,  an  attempt  to  procure 
votes  for  it  by  bribery  was  criminal.  The  offence  is  complete  when 
an  offer  of  reward  is  made  to  influence  the  vote  or  action  of  the  offi- 
cial. It  need  not  be  averred,  that  the  vote,  if  procured,  would  have 
produced  the  desired  result,  nor  that  the  official,  or  the  body  of  which 
he  was  a  member,  had  authority  by  law  to  do  the  thing  sought  to  be 
accomplished.  Suppose  an  application  made  to  a  justice  of  the  peace, 
in  the  court  for  the  trial  of  small  causes,  for  a  summons  in  case  of 
replevin,  for  slander,  assault  and  battery,  or  trespass,  wherein  title  to 
lands  is  involved:  over  these  actions  a  justice  of  the  peace  has  no  ju- 
risdiction, and  any  judgment  he  might  render  therein,  would  be  coram 
non  judice  and  void;  yet,  I  think,  it  can  hardly  be  contended,  that  a 
justice  thus  applied  to  may  be  oft"ered,  and  with  impunity  accept  a 
reward,  to  issue  a  summons  in  any  case  without  his  jurisdiction.  If 
the  common  council  of  Jersey  City  had  not  authority  to  grant  the  ap- 
plication referred  to,  the  act  of  the  defendant  in  endeavoring  to  procure 


244  OFFENSES    AGAINST   PUBLIC   JUSTICE    AND    AUTHORITr 

the  grant  asked  for  was  only  the  more  criminal,  because  he  sought,  by 
the  corrupt  use  of  money,  to  purchase  from  council  an  easement  which 
they  had  no  authority  to  grant.  He  thereby  endeavored  to  induce  them 
to  step  beyond  the  line  of  their  duty,  and  usurp  authority  not  commit- 
ted to  them.  The  gist  of  the  offence  is  said  to  be  the  tendency  of  the 
bribe  to  pervert  justice  in  any  of  the  governmental  departments,  exec- 
utive, legislative,  or  judicial.  2  Bishop's  Criminal  Law,  par.  96. 
Would  it  not  be  a  plain  perversion  of  justice,  to  buy  the  votes  of  coun- 
cilmen  in  favor  of  a  surrender  of  the  streets  of  the  city,  for  the  pur- 
poses of  a  railroad,  when  such  surrender  is  unauthorized  by  law? 
The  rights  of  the  citizens  of  the  municipality  thus  corruptly  tampered 
with  and  bargained  away,  might  be  regained  after  a  long  and  expensive 
litigation,  or  in  some  other  mode ;  nevertheless,  bribery  and  corrup- 
tion would  have  done,  to  some  extent  at  least,  their  work,  and  the  due 
course  of  justice  have  been  disturbed.  But  I  am  not  prepared  to  as- 
sent, as  at  present  advised,  to  the  proposition  that  the  common  council 
could  not  properly  entertain  the  application.  They  were  asked  by  a 
chartered  railroad  company  of  this  State,  having  its  terminus  in  Jer- 
sey City,  to  consent  that  a  railroad  track  might  be  laid  along  one  of 
the  public  streets  of  that  city.  It  is  not  pretended  that  any  legislative 
authority  to  lay  such  track  had  been  obtained.  The  railroad  company 
could  not,  under  these  circumstances,  lawfully  appropriate  to  its  use 
one  of  the  public  streets  of  the  city  without  the  consent  of  the  city, 
which  has  full  control  over  all  public  streets  within  the  city  limits. 
Laws  185  L  P-  406,  §  42,  par.  6. 

Whether  or  not  the  common  council  has  the  power,  with  or  without 
legislative  sanction,  to  grant  the  use  of  a  public  street  to  a  railroad 
company  for  the  uses  of  the  railroad,  it  is,  I  think,  clear  that  no  such 
use  can  be  made  of  the  streets,  without  the  consent  of  the  city,  in  the 
absence  of  a  legislative  grant  to  that  effect. 

Nor  is  it  material  whether  the  railroad  company  which  applied  for 
the  privilege,  had  the  power  under  its  charter  to  lay  the  track.  Ap- 
plication had  been  duly  made  for  that  purpose,  and  was  pending.  An 
attempt  to  bribe  a  member  of  council  to  vote  upon  it,  whether  such 
attempt  was  made  after  or  before  the  introduction  of  an  ordinance  or 
resolution  granting  the  privilege  asked,  comes  within  the  general  law 
against  bribery.  Whether  the  common  council  had  authority  to  make 
the  grant,  or  the  railroad  company  the  power  to  avail  itself  of  its  ben- 
efits, if  made,  or  whether  the  offer  of  a  bribe  was  before  or  after  the 
application  in  due  course  of  proceeding,  had  been  embodied  in  an  ordi- 
nance or  resolution,  is  immaterial.  The  offer  of  anything  of  value  in 
corrupt  payment  or  reward  for  any  official  act,  legislative,  executive, 
or  judicial,  to  be  done,  is  an  indictable  offence  at  the  common  law. 

The  objections  taken  are  not  tenable,  and  the  motion  to  quash  must 
be  denied. 

Motion  denied. 


OFFENSES   AGAINST  PUBLIC   PEACE  245 


OFFENSES  AGAINST  PUBLIC  PEACE 

I.  Riot* 


STATE  V.  BRAZIL  et  al. 
(Court  of  Appeals  of  South  Carolina,  1S39.     Rice,  257.) 

The  report  of  his  honor  the  presiding  judge,  of  these  cases,  is  as 
follows :  "These  were  three  indictments  for  riot.  The  first  ground  in 
the  notice  apphes  to  all  the  cases.  It  was  satisfactorily  proved,  that  on 
three  nights  in  the  month  of  August,  a  band  of  men,  eight  or  ten,  dis- 
guised, paraded  through  the  streets  of  Winnsborough,  armed  with 
guns  or  pistols,  or  both ;  they  marched  backwards  and  forwards,  shoot- 
ing guns  or  pistols  and  blowing  horns,  from  9  o'clock  p.  m.,  until  after 
midnight;  that  in  several  instances,  persons,  and  especially  females, 
were  aroused  from  their  sleep  in  a  state  of  terror  and  alarm,  by  the 
firing  of  the  guns  in  the  streets,  near  to  their  houses.     *     *     * 

The  defendants  now  moved  in  arrest  of  judgment,  and  for  a  new 
trial,  on  the  following  grounds:  For  a  new  trial — 1.  Because  from  the 
facts  established  by  the  evidence,  the  offence  in  law,  is  not  a  riot,  and 
the  court  should  have  so  charged  the  jury.     *     *     * 

Curia,  per  Evans,  J.2  *  *  *  But  do  the  facts  proved  amount 
to  a  riot?  Hawkins  says  a  riot  is  a  tumultuous  disturbance  of  the 
peace  by  three  persons  or  more,  assembled  of  their  own  authority,  with 
intent,  mutually,  to  assist  each  other,  and  afterwards  putting  the  de- 
sign in  execution  in  a  terrific  and  violent  manner,  whether  the  object 
be  lawful  or  unlawful.  This  partakes  of  the  imperfections  of  all  defi- 
nitions, and  a  correct  idea  of  the  offence  is  only  to  be  obtained  by  an- 
alysing the  cases  which  have  been  decided.  All  the  authorities  agree 
that  if  the  act  committed  be  a  trespass,  it  is  unlawful  and  riotous,  as 
if  the  object  be  to  beat  another,  or  to  pull  down  his  house,  or  such  like 
acts.  But  a  man  may  lawfully  pull  down  his  own  house  in  a  tumul- 
tuous manner  and  with  a  great  concourse  of  people,  yet  if  it  be  ac- 
companied by  no  circimistances  calculated  to  excite  terror  or  alarm 
in  others,  it  would  not  amount  to  a  riot — so  also  if  a  dozen  men  as- 
semble together  in  a  forest  and  blow  horns,  or  shoot  guns,  or  such  acts, 
it  would  not  be  a  riot.  But  if  the  same  party  were  to  assemble  at  the 
hour  of  midnight,  in  the  streets  of  Charleston,  or  Columbia,  and  were 
to  march  through  the  streets  cr)ang  fire,  blowing  horns  and  shooting 

1  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §  152. 

2  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


246  OFFENSES  AGAINST  PUBLIC  PEACE 

guns,  few,  I  apprehend,  would  hesitate  in  pronouncing  it  a  riot,  al- 
though there  might  be  no  ordinance  of  the  city  for  punishing  such 
conduct.  And  why?  Because  such  conduct  in  such  a  place  is  cal- 
culated to  excite  terror  and  alarm  among  the  citizens.  Lord  Holt  says, 
10  Mod.  116,  if  a  number  of  men  assemble  with  arms,  in  terrorem 
populi,  although  no  act  be  done,  it  is  a  riot.  On  the  same  principle,  an 
indictment  was  sustained  for  riotously  kicking  a  foot  ball  in  the  town 
of  Kingston,  2  Chitty,  Cr.  494.  It  was  an  amusement,  but  accom- 
panied with  such  circumstances  of  noise  and  tumult,  as  were  calculated 
to  excite  terror  and  alarm  among  the  inhabitants  of  the  town.  Par- 
ker, Ch.  J.,  says  in  Runnel's  Case,  10  Mass.  518,  6  Am.  Dec.  148,  "if 
the  offence  consists  in  going  about  armed,  without  committing  any  act, 
the  words  'in  terrorem  populi,'  are  necessary — because  the  offence  con- 
sists in  terrifying  the  people.  For  the  same  reason,  it  is  said  in  the 
case  of  the  rioters  at  Covent  Garden  Theatre,  2  Camp.  358,  that  the 
audience  may  lawfully  express  their  approbation  or  disapprobation  of 
an  actor ;  yet  if  a  number  of  persons  go  there  with  intent  to  render 
the  performance  inaudible,  though  they  offer  no  violence  to  the  house, 
or  any  person  there,  they  are  guilty  of  a  riot.  These  authorities,  I 
think,  fully  sustain  the  position,  that  even  admitting  the  acts  the  de- 
fendants performed  were  not  in  themselves  unlawful,  yet  they  were 
calculated  and  intended  to  excite  terror  and  alarm,  and  in  two  of  the 
cases  were  actually  proved  to  have  produced  that  effect.  And  in  con- 
firmation of  this  conclusion,  it  is  stated  in  a  note  to  Russell  on  Crimes, 
vol.  1,  p.  247,  to  have  been  decided  in  Pennsylvania,  in  the  case  of 
Cribs  and  others,  reported  in  Add.  277,  "If  a  number  of  persons  as- 
semble in  a  town  in  the  dead  of  night,  and  by  noises  or  otherwise,  dis- 
turb the  peaceable  citizens,  it  is  a  riot."     *     *     * 

The  motion  is  dismissed  on  all  the  grounds. 

0'Ni5Ai.L,  EarIvE,  BuiXER  and  Richardson,  Justices,  concurred. 


II.  Affray 


SIMPSON  V.  STATE. 

(Supreme  Court  of  Tennessee,  1S33.    5  Terg.  356.) 

At  the  May  term  of  the  circuit  court  for  the  county  of  White,  an 
indictment  was  found  against  the  plaintiff  in  error,  in  substance  as  fol- 
lows: The  grand  jurors  for  the  State,  &c.,  upon  their  oath,  present 
that  William  Simpson,  with  force  and  arms,  being  arrayed  m  a  warlike 

8  For  a  discussion  of  principles,  see  Clarlc  on  Criminal  Law  (3d  Ed.)  §  153. 


AFFRAY 


247 


manner,  in  a  certain  public  street  and  highway  situate,  unlawfully,  and 
to  the  great  terror  and  disturbance  of  divers  good  citizens  of  the  said 
State,  then  and  there  being,  an  affray  did  make,  in  contempt  of  the 
laws  of  the  land,  to  the  evil  example  of  all  others  in  the  like  case  of- 
fending, and  against  the  peace  and  dignity  of  the  State.     To  this  in- 
dictment the  plaintiff  in  error  pleaded  not  guilty;    upon  which  issue 
was  joined,  and  the  cause  submitted  to  a  jury,  who  found  him  guilty 
in  manner  and  form  as  charged  in  the  indictment.     The  plaintiff'  in 
error  moved  in  arrest  of  judgment,  and  filed  his  reasons,  which  upon 
argument  was  overruled  by  the  court,  and  a  bill  of  exceptions  taken 
thereto.    From  this  judgment,  an  appeal  in  error  is  taken  to  this  court. 
Whyte,  J.*     On  the  argument  in  this  case,  it  is  contended  by  the 
counsel  for  the  plaintiff  in  error,  that  the  record  does  not  present  any 
charge  that  is  known  to  the  law,  as  cognizable  in  our  courts  by  indict- 
ment.    On  the  part  of  the  State,  the  attorney  general  contends,  that 
the  offence  of  an  affray  is  sufficiently  charged  in  and  by  the  indictment. 
Authorities  have  been  cited  on  this  question ;   and  books  of  forms  of 
indictments  for  affrays,  have  also  been  referred  to,  for  the  purpose  of 
showing  that  the  form  of  the  charge  in  the  present  indictment  is  a  valid 
one  for  the  offence  of  an  affray ;   which  will  now  be  noticed.     Black- 
stone,  in  the  fourth  volume  of  his  Commentaries,  page  145,  says,  af- 
frays, from  affrater,  to  terrify,  are  the  fighting  of  two  or  more  persons, 
in  some  public  place,  to  the  terror  of  his  majesty's  subjects;   for  if  the 
fighting  be  in  private  it  is  no  affray,  but  an  assault.     It  will  be  ob- 
served, that  according  to  this  definition  of  an  affray  by  Blackstone, 
three  things  are  necessary  to  constitute  it.    First :  There  must  be  fight- 
ing.    Second :    This  fighting  must  be  by  or  between  two  or  more  per- 
sons.   And,  Third :   It  must  be  in  some  public  place  to  cause  terror  to 
the  people.    Hence  it  must  follow,  that  if  either  of  these  requisites  are 
wanting,  an  aft'ray  does  not  exist.     In  the  charge  in  this  indictment, 
which  is  assumed  to  amount  to  an  aff'ray  by  its  constitution,  the  two 
first  of  the  above  requisites  are  wanting,  to  wit,  fighting,  or  actual  vio- 
lence, and  the  number  of  persons  necessary  for  the  constitution  of  it. 
To  obviate  this,  and  to  prove  that  these  particulars  are  not  essential, 
Serjeant  Hawkins  is  cited  and  relied  upon,  (book,  1,  ch.  28,  §  4;)  where 
he  says,  "but  granting  that  no  bare  words  in  the  judgment  of  law, 
carry  in  them  so  much  terror  as  to  amount  to  an  affray,  yet  it  seems 
certain,  that  in  some  cases  there  may  be  an  aft'ray  where  there  is  no 
actual  violence,  as  where  a  man  arms  himself  with  dangerous  and  un- 
usual weapons,  in  such  a  manner  as  will  naturally  cause  terror  to  the 
people,  which  is  said  always  to  have  been  an  offence  at  common  law, 
and  is  strictly  prohibited  by  many  statutes."     *     *     *     The  true  con- 
struction of  the  portion  of  the  fourth  section  above  cited,  is  giving  it 

4  Part  of  the  opinion  of  Whyte  J.,  and  tlie  dissenting  opinion  of  Peck,  J,,  are 
omitted. 


248  OFFENSES   AGAINST  PUBLIC   PEACE 

an  application  to  particular  persons  in  particular  places,  under  particu- 
lar circumstances;  this  is  proved  by  what  Serjeant  Hawkins  has  laid 
down  previously  in  the  first  and  second  sections  of  the  same  chapter, 
under  the  same  head,  where  he  gives  the  general  rule,  concurring  in 
substance  with  Blackstone ;  he  says :  "From  this  definition  it  seems 
clearly  to  follow,  that  there  may  be  an  assault  which  will  not  amount 
to  an  aflfray,  as  where  it  happens  in  a  private  place,  out  of  the  hearing 
or  seeing  of  any  except  the  parties  concerned,  in  which  case  it  cannot 
be  said  to  be  to  the  terror  of  the  people ;  and  for  this  cause,  such  pri- 
vate assault  seems  not  to  be  inquirable  in  a  court,  but  as  all  affrays  cer- 
tainly are,  as  being  common  nuisances."  This  passage  concurs  with 
and  supports  Blackstone  in  the  above  two  particulars  of  actual  vio- 
lence, and  the  plurality  of  the  persons  concerned  as  actors,  which  it 
was  assumed  the  citation  from  this  fourth  section  dispensed  with.  The 
like  deduction  may  be  drawn  from  the  second  section,  where  it  is  laid 
down,  "that  no  quarrelsome  or  threatening  words  whatsoever,  shall 
amount  to  an  affray,  and  that  no  one  can  justify  laying  his  hands  on 
those  who  shall  barely  quarrel  with  angry  words,  without  coming  to 
blows."     *     *     * 

Here,  in  this  record,  it  is  not  stated  that  the  plaintiff  in  error  fought 
with  any  person,  or  committed  any  act  of  violence  on  any  one,  setting 
forth  its  nature,  or  that  he  inflicted  blows  on  any  person,  with  the  at- 
tendant manner  and  circumstances,  and  also  in  each  case  naming  the 
person  or  persons,  if  known,  and  if  not  known,  stating  that  fact;  all  of 
which  ought  to  appear  in  the  charge,  if  they  existed.  As  they  do  not 
so  appear,  their  existence  is  not  to  be  intended.  There  is,  therefore, 
error  in  the  judgment  of  the  circuit  court,  which  must  be  reversed; 
and  this  court  proceeding  to  give  such  judgment  as  the  circuit  court 
should  have  given,  direct  the  indictment  to  be  quashed  for  its  insuffi- 
ciency. 

Catron,  C.  J.,  and  GrEEN,  J.,  concurred.     Pe;ck,  J.,  dissentiente. 

Judgment  reversed. 


FORCIBLE    ENTRY    AND    DETAINEE  249 


III.  Forcible  Entry  and  Detainer  ^ 


HARDING'S  CASE. 

(Supreme  Judicial  Court  of  Maine,  1S20.    1  Me.  [1  Greenl.]  22.) 

The  defendant  was  indicted  for  that  he,  "with  force  and  arms,  to 
wit,  with  an  axe  and  auger,  unlawfully,  violently,  forcibly,  injuriously 
and  with  a  strong  hand,  did  enter  into  the  dwelling-house  of  Joseph 
Gate  in  said  Portland,  and  in  his  actual  and  exclusive  possession  and 
occupation  with  his  family;  and  the  said  Harding  did  then  and  there 
unlawfully,  violently,  forcibly,  injuriously  and  with  a  strong  hand, 
bore  into  said  dwelling-house  with  said  auger,  and  cut  away  a  part 
of  said  house,  and  stove  in  the  doors  and  windows  thereof  with  said 
axe,  said  Joseph's  wife  and  children  being  in  said  house,  thereby  put- 
ting them  in  fear  of  their  lives,"  &c. 

A  verdict  of  conviction  being  found  against  the  defendant,  he 
moved  that  judgment  be  arrested  for  the  following  reasons: 

1.  That  the  allegations  contained  in  said  indictment  do  not  amount 
to  any  criminal  offence,  either  at  common  law,  or  by  statute. 

2.  That  the  indictment  contains  no  allegation  that  Joseph  Gate  was 
seized  of  the  said  dwelling-house,  or  of  the  land  whereon  the  same 
stands,  at  the  time  of  the  alleged  forcible  entry;  nor  does  it  allege 
who  was  seized  of  the  same ;  neither  does  it  appear  but  that  Harding 
was  himself  seized  of  the  freehold.     *     *     * 

Preble,  J.,®  at  another  day  in  the  term,  delivered  the  judgment 
of  the  Gourt,  as  follows ;     *     *     * 

The  indictment  is  at  common  law.  If  the  facts  charged,  therefore, 
do  not  constitute  an  indictable  offence  at  common  law,  no  sentence 
can  be  pronounced  upon  the  defendant. 

The  earlier  authorities  do  sanction  the  doctrine,  that  at  common 
law,  if  a  man  had  a  right  of  entry  in  him,  he  was  permitted  to  enter 
•with  force  and  arms,  where  such  force  was  necessary  to  regain  his 
possession.  (Hawk.  P.  G.  chap.  64,  and  the  authorities  there  cited.) 
To  remedy  the  evils  arising  from  this  supposed  defect  in  the  common 
law,  it  was  provided  by  Stat.  5  Rich.  2,  chap.  7,  that  "none  should 
make  any  entry  into  any  lands  or  tenements,  but  in  cases  where  entry 
is  given  by  the  law;  and  in  such  cases,  not  with  strong  hand  nor 
with  multitude  of  people  but  only  in  a  peaceable  and  easy  manner." 
The  authorities  are  numerous  to  show  that  for  a  trespass, — a  mere 

5  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §§  154, 
155. 

6  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


250  OFFENSES  AGAINST  PUBLIC  PEACE 

civil  injury,  unaccompanied  with  actual  force  or  violence,  though  al- 
leged to  have  been  committed  with  force  and  arms, — an  indictment 
will  not  lie.  But  in  Rex  v.  Bathurst,  Sayers'  Rep.  226,  the  Court 
held  ithat  forcible  entry  into  a  man's  dwelling-house  was  an  indicta- 
ble offence  at  common  law,  though  the  force  was  alleged  only  in 
the  formal  words  vi  et  armis.  In  Rex  v.  Bake,  3  Burr.  1731,  it  was 
held  that  for  a  forcible  entry  an  indictment  will  lie  at  common  law; 
but  actual  force  must  appear  on  the  face  of  the  indictment,  and  is 
not  to  be  implied  from  the  allegation,  that  the  act  was  done  vi  et 
armis.  In  the  King  v.  Wilson,  8  D.  &  E.  357,  an  indictment  at  com- 
mon law  charging  the  defendant  with  having  unlawfully  and  with  a 
strong  hand  entered  the  prosecutor's  mill,  and  expelled  him  from  the 
possession,  was  held  good.  In  this  latter  case  Lord  Kenyon  remarks : 
''God  forbid  these  facts,  if  proved,  should  not  be  an  indictable  offence; 
the  peace  of  the  whole  country  would  be  endangered,  if  it  were  not 
so."  'The  case  at  bar  is  a  much  stronger  one,  than  either  of  those 
cited.  The  peace  of  the  State  would  indeed  be  jeopardized,  if  any 
lawless  individual,  destitute  of  property,  might,  without  being  liable 
to  be  indicted  and  punished,  unlawfully,  violently,  and  with  a  strong 
hand,  armed  with  an  axe  and  auger,  forcibly  enter  a  man's  dwelling- 
house,  then  in  his  actual,  exclusive  possession  and  occupancy  with 
his  wife  and  children,  stave  in  the  doors  and  windows,  cutting  and 
destroying,  and  putting  the  women  and  children  in  fear  of  their  lives. 

The  second  objection  that  no  seizin  is  alleged  does  not  apply  to 
indictments  for  forcible  entries  at  common  law.  Under  the  statute 
of  New  York  against  forcible  entry,  the  party  aggrieved  has  resti- 
tution and  damages ;  and  hence  it  is  necessary  that  the  indictment 
should  state  the  interest  of  the  prosecutor.  The  People  v.  Shaw, 
cited  by  the  defendant's  counsel,  and  the  People  v.  King,  2  Caines 
(N.  Y.)  98,  are  cases  upon  the  statute  of  that  State.  In  Rex  v.  Bake, 
Mr.  Justice  Wilmot  remarks :  "No  doubt  an  indictment  will  lie  at 
common  law  for  a  forcible  entry  though  they  are  generally  brought 
on  the  acts  of  parliament.  On  the  acts  of  parliament  it  is  necessary 
to  state  the  nature  of  the  estate,  because  there  must  be  restitution,  but 
they  may  be  brought  at  common  law."  In  the  King  v.  Wilson,  Lord 
Kenyon  says:  "No  doubt  the  offence  of  forcible  entry  is  indictable 
at  common  law,  though  the  statutes  give  other  remedies  to  the  party 
grieved,  restitution  and  damages ;  and  therefore  in  an  indictment  on 
the  statutes,  it  is  necessary  to  state  the  interest  of  the  prosecutor." 
Our  statute  contains  no  such  provision,  and  gives  no  remedy  by  indict- 
ment. It  simply  provides  process  to  obtain  restitution,  leaving  the 
parties,  the  one  to  his  action  for  damages,  the  other  to  his  liability  to 
be  indicted  and  punished  at  common  law.     *     *     * 

On  the  whole  we  think  the  indictment  contains  sufficient  matter 
to  warrant  a  judgment  upon  the  verdict  which  has  been  found  against 
the  defendant ;   and  the  motion  in  arrest  is  accordingly  overruled. 


LIBELS  251 


IV.  Libels^ 


COMMONWEALTH  v.  BLANDING. 
(Supreme  Judicial  Court  of  Massacliusetts,  1825.    3  Pick.  304, 15  Am.  Dec.  211.) 

Parker,  C.  J.,®  delivered  the  opinion  of  the  court.     *     *     * 

As  to  that  part  of  the  instructions  of  the  judge  which  states  that 
the  mahcious  intent  charged  in  the  indictment  (there  being  no  evi- 
dence admitted  to  prove  the  truth  of  the  facts  alleged)  was  an  in- 
ference of  law,  this  is  certainly  the  common-law  doctrine,  and  it  never 
has  been  repealed  by  any  statute  of  this  commonwealth,  nor  overruled" 
by  any  decision  of  this  court.     *     *     * 

The  propagator  of  written  or  printed  tales  to  the  essential  prej- 
udice of  any  one  in  his  estate  or  reputation  is  a  public  offender,  and 
is  not  allowed  to  excuse  himself  by  the  additional  wrong  of  proving 
in  a  court  of  justice,  in  a  collateral  way,  the  facts  which  he  has  un- 
warrantably promulgated. 

And  yet  there  are  some  exceptions  to  this  general  rule,  recognized 
by  the  common  law,  and  others  which  are  rendered  necessary  by  the 
principles  of  our  government. 

These  exceptions  are  all  founded  in  a  regard  to  certain  public  in- 
terests, which  are  of  more  importance  than  the  character  or  tran- 
quillity of  any  individual.  All  proceedings  in  legislative  assemblies, 
whether  by  speech,  written  documents,  or  otherwise,  are  protected 
from  scrutiny  elsewhere  than  in  those  bodies  themselves,  because 
it  is  essential  to  the  maintenance  of  public  liberty  that  in  such  assem- 
blies the  tongue  and  the  press  should  be  wholly  unshackled.  So  pro- 
ceedings in  courts  of  justice,  in  which  the  reputation  of  individuals 
may  be  involved,  are  to  be  free  from  future  animadversions,  because 
the  investigation  of  right  demands  the  utmost  latitude  of  inquir}', 
and  men  ought  not  to  be  deterred  from  prosecuting  or  defending  there 
by  fear  of  punishment  or  damages.  Yet  in  these  instances,  if  this 
necessary  indulgence  is  abused  for  malicious  purposes,  a  pretense 
only  being  made  of  the  forms  of  legislative  or  judicial  process,  the 
party  so  conducting  himself  is  amenable  to  the  law.  The  right,  also, 
of  complaining  to  any  public  constituted  body  of  the  malversation 
or  oppressive  conduct  of  any  of  its  officers  or  agents,  with  a  view  to 
redress  for  actual  wrong  or  the  removal  of  an  unfaithful  officer,  may 

7  For  a  discussion  of  principles,  see  Clark  on  Criminal  Law  (3d  Ed.)  §§ 
lot),  157. 

8  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


252  OFFENSES  AGAINST  PUBLIC  PEACE 

be  justified,  because  the  case  will  show  that  the  proceeding  does  not 
arise  from  malicious  motives,  or,  if  it  does,  because  the  common  in- 
terest require'i  that  such  representations  should  be  free.  And  there 
are  cases  of  mere  private  import,  such  as  an  honest,  though  mistaken, 
character  of  a  servant,  which,  when  requested  by  any  one  having  an 
interest,  the  law  considers  innocent.  These  cases  are  all  provided  for 
by  the  common  law,  and  they  go  far  to  render  harmless  that  much 
decried  rule  that  the  truth  is  no  defense  in  a  prosecution  for  libel. 
Rex  V.  Wright,  8  T.  R.  293 ;  Rex  v.  Creevey,  1  M.  &  S.  273 ;  Lake 
V.  King,  1  Saund.  131;  Astley  v.  Younge,  2  Burr.  807;  Rogers  v. 
Clifton,  3  B.  &  P.  587;  Esp.  Dig.  (3d  Ed.)  505;  Thorn  v.  Blanchard, 
5  Johns.  (N.  Y.>  508;  Rex  v.  Fisher,  2  Campb.  563;  Starkie  on 
Slander,  c.  11.     *     *     * 

But  there  are  certain  other  cases,  not  yet  distinctly  adjudicated 
upon,  where  the  truth  of  charges  is  a  legitimate  ground  of  defense, 
by  clear  inference  from  principles  recognized  by  the  common  law 
and  our  own  tribunals. 

In  Commonwealth  v.  Clap,  4  Mass.  163,  3  Am.  Dec.  212,  it  is 
stated  "that  a  man  may  apply  by  complaint  to  the  Legislature  to  re- 
move an  unworthy  officer,  and  if  the  complaint  be  true,  and  made 
with  the  honest  intention  of  giving  useful  information,  and  not  ma- 
liciously, or  with  intent  to  defame,  the  complaint  will  not  be  a  libel." 

This  is  put  for  illustration  of  the  principle,  not  to  exhibit  the  only 
instance  in  which  it  is  to  be  applied.  A  complaint  to  the  executive 
against  an  officer  holding  his  place  at  its  pleasure,  to  a  court  against 
an  officer  whom  they  have  the  power  to  dismiss,  to  any  body  of  men 
having  power  over  its  officers,  the  subject  of  the  complaint  being  of 
a  public  nature,  or  the  person  complaining  having  a  particular  inter- 
est in  it,  falls  within  the  same  principle. 

Thus,  if  a  minister  of  the  gospel  should  be  guilty  of  gross  im- 
moralities, and  one  of  his  parish  should  complain  to  the  church  in 
order  that  an  inquiry  might  be  instituted,  or  if  a  candidate  for  the 
ministry  should  from  vicious  habits  be  unfit  for  the  station  he  seeks, 
since  all  are  interested  in  the  purity  of  the  ministerial  character,  in- 
formation to  those  whose  duty  it  is  to  determine  his  qualifications 
would  not  be  libelous,  if  communicated  in  a  spirit  of  truth  and  can- 
dor. Various  other  cases  might  be  put,  in  which,  if  it  appeared  that 
the  purpose  was  sincere  and  upright  and  wholly  free  from  malice, 
the  truth  of  the  facts  stated  would  be  a  good  defense.  But  in  all 
such  cases  the  information  is  to  be  given  to  those  who  have  a  right 
to  act  upon  it,  and  whose  interest  and  duty  are  concerned  in  it ;  for 
a  promiscuous  promulgation  of  the  same  facts  would  of  itself  be  the 
strongest  evidence  of  malice,  and  in  such  cases  the  court  must  judge 
whether  the  occasion  is  a  fit  and  proper  one  for  the  admission  of 
such  defense,  and  the  jury  must  determine  the  motives  and  the 
end.     *     *     * 


LIBELS  253 

Having  thus  attempted  to  vindicate  the  law  of  libel,  as  established 
in  this  commonwealth,  from  the  aspersions  which  are  frequently  cast 
upon  it,  we  will  consider  its  application  to  the  case  before  us,  in  or- 
der to  determine  whether,  upon  either  of  the  grounds  assumed,  a 
new  trial  ought  to  be  granted;     *     *     * 

The  other  objection,  which  opens  the  general  question,  is  that  the 
judge  refused  to  admit  in  evidence  the  inquisition  which  is  alluded  to 
in  the  publication,  and  with  a  view  to  prove  the  truth  of  the  facts 
therein  stated.  Had  the  inquisition  been  published  without  any  de- 
famatory comment,  it  certainly  would  not  have  furnished  ground  for 
this  prosecution ;  for  it  does  not  of  itself  contain  any  libelous  matter, 
and  it  is  in  the  nature  of  a  judicial  inquiry,  the  publication  of  which 
would  not  be  criminal,  unaccompanied  by  direct  proof  of  malice.  The 
inquisition  merely  states  that  a  deceased  stranger,  who  was  found 
dead  in  a  tavern  kept  by  Fowler,  came  to  his  death  by  intoxication. 
Now,  this  may  be  true  without  any  implication  against  Fowler;  for 
every  innholder  is  liable  to  have  drunken  people  come  to  his  house, 
and,  if  they  die  there,  he  may  be  entirely  innocent  of  the  cause  of 
their  death.  But  the  remarks  made  by  the  defendant  charged  Fowler 
with  having  administered  the  liquid  poison,  and  thus  being  the  cause 
of  the  death  of  the  stranger;  and  the  public  are  warned  against  re- 
sorting to  the  house  where  such  practice  is  allowed,  and  the  municipal 
authorities  are  invoked  to  exert  their  power  by  taking  away  or  with- 
holding the  license  of  Fowler  to  keep  a  public  house.  The  matter 
of  this  publication  is  certainly  libelous,  as  it  insinuates  gross  miscon- 
duct against  Fowler,  and  directly  charges  him  with  a  violation  of  his 
duty,  and  exposes  him  to  the  loss  of  his  livelihood,  so  far  as  that  de- 
pends upon  the  reputation  of  his  inn  for  regularity  and  order.  Ad- 
mitting the  account  of  the  inquisition  to  be  correct  as  published,  yet 
the  addition  of  comments  and  insinuations  tending  to  asperse  Fowler's 
character  renders  it  libelous.  Thomas  v.  Croswell,  7  Johns.  (N.  Y.) 
264,  5  Am.  Dec.  269. 

But  it  is  said  that  this  is  a  matter  of  public  concern,  and  that  the 
defendant  was  impelled  by  a  sense  of  public  duty  to  warn  travelers 
and  others  from  a  house  which  was  thus  deservedly  stigmatized.  The 
answer  is  that  the  defendant  did  not  select  a  proper  vehicle  for  the 
communication.  The  natural  effect  of  a  publication  of  this  sort  in  a 
newspaper  is  to  procure  a  condemnation  in  the  public  mind  of  the 
party  accused,  and  his  punishment,  by  bringing  his  house  into  dis- 
repute, without  any  opportunity  of  defense  on  his  part,  so  that  the 
accuser  becomes  judge  and  executioner  at  one  stroke,  and  his  purpose 
if  a  malicious  one,  is  answered  without  any  means  of  relief ;  for  the 
mischief  to  the  person  libeled  would  be  quite  as  great  if  he  were  in- 
nocent as  if  he  were  guilty.  If  it  should  be  said  in  answer  that  all 
this  is  right  if  the  allegation  be  true,  and  if  not  true  he  may  recover 
his  damages  in  an  action  of  slander,  it  may  justly  be  replied  that  this 


254  OFFENSES   AGAINST   PUBLIC   PEACE 

remedy  is  uncertain  and  incomplete;  for  in  many  cases  the  slanderer 
will  be  unable  to  respond  in  damages,  and  the  suffering  party  will 
be  subjected  to  the  additional  injury  of  a  troublesome  and  expensive 
lawsuit,  with  little  or  no  hope  of  recompense. 

There  may  be  cases  where  (there  being  no  other  mode  by  which 
great  mischief  can  be  warded  off  from  the  public)  a  newspaper  com- 
munication, made  with  the  sole  view  of  preserving  the  citizens  from 
injury  to  their  life  or  health,  would  be  justifiable.  Such  might  be  the 
case  of  an  apothecary  selling  and  distributing  poison  in  the  form  of 
medicine,  stated  by  a  distinguished  member  of  the  late  convention  for 
revising  the  Constitution.  This  is  an  extreme  case,  where  to  delay 
information  until  the  forms  of  law  should  be  pursued  might  endanger 
the  lives  of  hundreds,  and  such  a  case  would  be  a  law  to  itself ;  the 
public  safety  being  the  supreme  law,  and  it  being  every  citizen's  duty 
to  give  warning  in  such  cases.  There  may  be  cases  of  gross  swindling, 
where  nothing  but  immediate  notice  would  secure  the  public  against 
depredation,  which  would  be  governed  by  the  same  principle. 

But  in  the  case  before  us  there  was  no  such  urgent  necessity.  The 
statute  regulating  licensed  houses  provides  the  restrictions  and  the 
punishment  which  the  Legislature  has  thought  adequate  to  the  offenses 
of  the  nature  contained  in  this  libel.  For  suffering  excessive  drink- 
ing in  his  house,  the  innkeeper  is  subject  to  a  penalty.  For  a  second 
oft'ense,  he  is  to  be  put  under  bond  for  good  behavior,  in  addition  to 
a  pecuniary  mulct.  For  a  third,  he  is  to  forfeit  his  license  and  shall 
be  disqualified  to  keep  a  public  house  for  two  years.  And,  besides 
all  this,  if  his  misconduct  is  continued  so  as  to  constitute  his  house 
disorderly,  or  so  that  he  violates  the  law  for  regulating  it,  he  forfeits 
the  penalty  of  his  recognizance.  Other  guards  and  securities  are  pro- 
vided in  the  statute  to  prevent  the  abuse  of  the  license,  and  a  com- 
plaint may  be  made  to  the  selectmen,  to  a  justice  of  the  peace,  or  to 
a  grand  jury,  by  any  person  who  has  knowledge  of  such  oft'enses,  with- 
out incurring  the  risk  of  a  prosecution  for  libel.  There  was,  then, 
no  necessity  for  this  newspaper  publication,  and  the  defendant,  by 
resorting  to  it,  has  taken  the  law  into  his  own  hands  unwarrantably, 
instead  of  resorting  to  those  tribunals  which  the  laws  have  constituted 
for  the  correction  of  these  offenses.  This,  then,  is  a  case  in  which  the 
defendant  cannot  be  allowed  to  excuse  himself  by  showing  the  truth 
of  the  accusation  which  he  has  unjustifiably  made.  He  had  no  right  to 
arraign  the  prosecutor  before  the  public  in  the  form  which  he  adopted, 
and  thus  destroy  the  reputation  of  his  house,  without  leaving  him 
any  means  of  showing  his  innocence  of  the  charges  made  against  him. 
The  occasion  was  not  a  proper  one  for  a  newspaper  denunciation. 

Motion  for  a  new  trial  overruled. 


JURISDICTION  255 


JURISDICTION 


STATE  V.  CUTSHALU 

(Supreme  Court  of  North  Carolina,  1892.     110  N.  C,  538,  15  S.  E.  261, 

16  L.  R.  A.  130.) 

AvKRY,  J.i  The  statute  (Code,  §  988)  provides  that  "if  any  per- 
son, being  married,  shall  marry  any  other  person  during  the  life  of  the 
former  husband  or  wife,  whether  the  second  marriage  shall  have  taken 
place  in  the  state  of  North  Carolina  or  elsewhere,  every  such  offender, 
and  every  other  person  counseling,  aiding,  or  abetting  such  offender, 
shall  be  guilty  of  a  felony,  and  imprisoned  in  the  penitentiary  or  coun-' 
ty  jail  for  any  term  not  less  than  four  months,  nor  more  than  ten 
years,  and  any  such  offense  may  be  dealt  with,  tried,  determined,  and 
punished  in  the  county  where  the  offender  shall  be  apprehended  or  be 
in  custody  as  if  the  offense  had  been  actually  committed  in  that 
county." 

The  general  rule  is  that  the  laws  of  a  country  "do  not  take  effect 
beyond  its  territorial  limits,  because  it  has  neither  the  interest  nor  the 
power  to  enforce  its  will,"  and  no  man  suffers  criminally  for  acts  done 
outside  of  its  confines.  1  Bish.  Crim.  Law  (7th  Ed.)  §§  109,  110; 
People  V.  Tyler,  7  Alich.  161,  74  Am.  Dec.  703;  Tyler  v.  People,  8 
Mich.  335;  State  v.  Barnett,  83  N.  C.  616;  State  v.  Brown,  2  N.  C. 
100,  1  Am.  Dec.  548. 

In  the  case  of  State  v.  Ross,  76  N.  C.  242,  22  Am.  Rep.  678,  the  court 
said:  "Our  laws  have  no  extraterritorial  operation,  and  do  not  at- 
tempt to  prohibit  the  marriage  in  South  Carolina  of  blacks  and  whites 
domiciled  in  that  state" — thus  recognizing  the  principle,  generally  ac- 
cepted in  America,  that  a  state  will  take  cognizance,  as  a  rule,  only 
of  offenses  committed  within  its  boundaries. 

Among  the  exceptions  to  this  general  rule  are  the  cases  where  one, 
being  at  the  time  in  another  state  or  country,  does  a  criminal  act,  which 
takes  effect  in  our  own  state;  as  where  one  who  is  abroad  obtains 
goods  by  false  pretenses,  or  circulates  libels  in  our  own  state,  and  con- 
trary to  our  laws,  or  from  a  standpoint  beyond  the  line  of  our  state 
fires  a  gun  or  sets  in  motion  any  force  that  inflicts  an  injury  within  the 
state  for  which  a  criminal  indictment  will  lie.  1  Bish.  Crim.  Law,  § 
110;  Ham  v.  State,  4  Tex.  App.  659;  Cambioso  v.  Maffct,  2  Wash. 
C.  C.  98,  Fed.  Cas.  No.  2,330. 

1  The  statement  of  facts  and  part  of  the  opinion  is  omitted. 


256  JURISDICTION 

Persons  guilty  of  such  acts  are  liable  to  indictment  and  punishment 
when  they  venture  voluntarily  within  the  territorial  bounds  of  the  of- 
fended sovereignty,  or  when,  under  the  provisions  of  extradition  laws 
or  the  terms  of  treaties,  they  are  allowed  to  be  brought  into  its  limits 
to  answer  such  charges.  *  *  *  So  a  foreigner,  not  accredited  to 
another  government  as  a  representative  of  his  own  nation,  is  subject 
to  the  law  of  the  country  in  which  he  may  travel  or  establish  a  tem- 
porary domicile,  and  may  be  tried  in  its  tribunals  for  any  violation  of 
its  criminal  laws  while  within  its  territorial  limits. 

Wheaton,  in  his  treatise  on  International  Law  (section  120,  note  77^, 
says :  "In  Great  Britain,  France,  and  the  United  States,  the  general 
principle  is  to  regard  crimes  as  of  territorial  jurisdiction.  *  *  * 
The  question  whether  a  state  shall  punish  a  foreigner  for  a  crime  previ- 
ously committed  abroad  against  that  state  or  its  subjects  also  depends 
upon  its  system  respecting  punishing  generally  for  crimes  committed 
abroad ;  Great  Britain  and  the  United  States  respecting  strictly  the 
principle  of  the  territoriality  of  crime."  While,  in  our  external  rela- 
tions with  other  nations,  our  federal  head,  the  United  States,  is  the 
only  sovereign,  for  the  purpose  of  internal  government  such  portion 
of  the  sovereign  power  as  has  not  been  surrendered  to  the  general  gov- 
ernment is  retained  by  the  states.  11  Am.  &  Eng.  Enc.  Law,  p.  440, 
and  notes. 

In  the  exercise  of  their  reserved  powers,  especially  in  the  execution 
of  the  criminal  law,  questions  arise  which  are  settled  and  determined 
either  according  to  the  principles  of  international  law  or  by  analogy 
to  them.  It  is  contended  that  nothing  but  comity  between  nations,  in 
the  absence  of  express  provisions  of  treaties,  prevents  one  nationality 
from  making  laws  to  punish  persons  who  commit  criminal  offenses  in 
another  country,  and  afterwards  come  within  its  territory;  and  that, 
admitting  this  principle  to  be  correct,  there  can  be  no  treaty  stipula- 
tion, and  there  is  in  fact  no  constitutional  inhibition,  that  restricts  the 
Legislature  of  one  of  our  internal  sovereignties  from  enacting  laws  to 
punish  a  person  who  comes  into  its  domain,  so  as  to  be  apprehended 
there,  for  a  crime  committed  in  a  sister  state. 

Article  29  of  the  confirmatory  charter  granted  by  Henry  III.  pro- 
vided that  "no  freeman  should  be  taken  or  imprisoned,  or  disseised  of 
freehold  or  liberties  or  free  customs,  or  be  outlawed  or  exiled,  or  any 
otherwise  destroyed,  nor  will  we  pass  upon  him  or  condemn  him,  but 
by  lawful  judgment  of  his  peers  or  by  the  law  of  the  land." 

In  the  formal  declaration  of  independence  the  king  of  Great  Britain, 
after  being  charged  with  many  violations  of  fundamental  principles 
and  invasions  of  common  rights,  was  arraigned  before  the  world  "for 
depriving  us  in  many  cases  of  trial  by  jury;  for  transporting  us  be- 
yond the  seas  to  be  tried  for  pretended  offenses."  This  language 
evinces  the  purpose  of  our  representatives  to  risk  their  lives  and  their 
fortunes,  in  part,  at  least,  to  secure,  not  simply  the  ancient  right  of 


JURISDICTION  257 

trial  by  jury,  but  trial  by  a  jury  of  the  vicinage,  within  easy  reach  of 
all  evidence  material  for  the  vindication  of  the  accused,  where  the 
charge  might  prove  unfounded  u\K>n  a  fair  investigation. 

During  the  same  year  these  principles  were  embodied  in  the  decla- 
ration of  rights  by  the  colonial  congress,  in  what  now  constitute  sec- 
tions 13  and  17  of  article  1  of  the  Constitution,  which  are  as  follows: 

"Sec.  13.  No  person  shall  be  convicted  of  any  crime  but  by  the 
unanimous  verdict  of  a  jury  of  good  and  lawful  men." 

"Sec.  17.  No  person  ought  to  be  taken,  imprisoned,  or  disseised  of 
his  freehold,  liberties,  or  privileges,  or  outlawed  or  exiled,  or  in  any 
manner  deprived  of  his  life,  liberty,  or  property,  but  by  the  law  of  the 
land." 

Not  only  has  section  13  been  construed  to  guaranty  to  every  per- 
son (whether  a  citizen  of  this  state  or  of  another  commonwealth)  a 
trial  by  jury  in  all  cases,  which  were  so  triable  at  common  law  (such 
as  an  indictment  for  a  felony),  but  a  trial  by  his  peers  of  the  vicinage, 
unless,  after  indictment,  it  should  appear  to  the  judge  necessary  to 
remove  the  case  to  some  neighboring  county,  in  order  to  secure  a  fair 
trial.  Judge  Cooley  says  (Const.  Lim.  marg.  pp.  319,  320):  "Many 
of  the  incidents  of  a  common-law  trial  by  a  jury  are  essential  elements 
of  right.  The  jury  must  be  indifferent  between  the  prisoner  and*the 
commonwealth,  and  to  secure  impartiality  challenges  are  allowed,  both 
for  cause,  and  also  peremptory,  without  assigning  cause.  The  jury 
must  also  be  summoned  from  the  vicinage  where  the  crime  is  supposed 
to  have  been  committed ;  and  the  accused  will  thus  have  the  benefit  on 
his  trial  of  his  own  good  character  and  standing  with  his  neighbors 
if  these  he  has  preserved,  and  also  of  such  knowledge  as  the  jury  may 
possess  of  the  witness  who  may  give  evidence  against  him.  He  will 
also  be  able  with  more  certainty  to  secure  the  attendance  of  his  own 
Avitnesses."  Kirk  v.  State,  1  Cold.  (Tenn.)  344;  Armstrong  v.  State, 
Td.  338 ;  State  v.  Denton,  6  Cold.  (Tenn.)  539.  This  strong  language 
is  used  in  commenting  upon  the  clause,  which,  in  substantially  the  same 
terms,  guaranties  the  right  of  trial  by  jury  in  all  serious  criminal  pros- 
ecutions in  every  one  of  the  states.     *     *     * 

After  the  federal  Constitution  had  been  ratified  the  people  of  the 
states,  with  the  recollection  of  the  flagrant  invasions  of  their  rights 
by  transporting  freemen  abroad  to  be  tried  for  "pretended  offenses" 
still  fresh,  amended  it  so  that,  says  Ordronaux,  "the  crime  and  its 
punishment  are  attached  to  the  jurisdiction  within  which  it  was  com- 
mitted."    Ordronaux,  Const.  Leg.  259 ;   Const.  U.  S.  art.  3,  §  2,  cl.  3. 

These  amendments  apply  only  to  federal  tribunals,  but  the  fact  that 
they  were  prohibited  from  trying,  except  in  the  state  where  the  crime 
should  be  committed,  is  evidence  of  a  purpose  to  put  it  beyond  the 
power  of  congress  to  have  a  citizen  tried  for  a  criminal  offense  ex- 
cept by  a  jury  of  the  vicinage,  and  at  a  point  not  so  remote  as  to  de- 
prive him  of  the  benefit  of  his  witnesses. 
IkliKixL  Cas.Cb.L. — 17 


258  JURISDICTION 

Another  amendment  (article  4,  §  2,  cl.  2)  supplements  that  already 
referred  to,  and  shows  by  its  terms  that  the  purpose  in  enacting  it  was 
to  definitely  localize  the  forum  of  every  crime  committed  by  a  person 
not  in  the  land  or  naval  forces,  by  providing  for  the  extradition  of 
criminals  on  demand  of  the  governor  "to  the  state  having  jurisdiction 
of  the  crime."  It  was  evidently  contemplated  by  the  framers  of  the 
Constitution  that  ordinarily  there  would  be  but  one  state  where  a  crime 
could  be  properly  said  to  have  been  committed,  and  whose  courts 
would  have  cognizance  of  it.  It  was  natural  that  they  should  cling  to 
the  old  territorial  rule,  which  limited  the  jurisdiction  to  the  courts  of 
the  county. 

The  state  of  South  Carolina  was  the  sovereign  whose  authority  was 
disregarded  when  the  bigamous  marriage  was  celebrated.  If  the  de- 
fendant married  a  second  time  in  South  Carolina  or  elsewhere  outside 
of  North  Carolina,  the  act  had  no  tendency  at  the  time  to  affect  socie- 
ty here,  nor  can  that  unlawful  conduct  be  punished  as  a  violation  of 
our  criminal  laws.  On  the  other  hand,  the  completed  act  of  entering 
into  a  second  marriage  in  a  neighboring  state  is  not  analogous  to  the 
cases  where  a  mortal  wound  is  inflicted  in  one  state,  and  the  wounded 
man  lingers  and  dies  from  its  eiTects  within  the  limits  of  another  state 
during  the  next  ensuing  12  months. 

It  is  needless  now  to  discuss  the  question  wdiether,  on  account  of  the 
fact  that  th-e  ultimate  effect  of  the  wound  is  the  resulting  death,  the 
state  in  which  the  death  occurs  in  such  cases  should  not  be  held  to  have 
common-law  jurisdiction  to  try  for  murder,  since  nearly  all  of  the 
states  have  enacted  statutes  providing  for  such  trials,  and  some  of  them 
have  declared  such  enactments  essential.  Com.  v.  IMacloon,  101  Mass. 
1,  100  Am.  Dec.  89;   Bishop,  Crim.  Law,  §§  112-117.     *     *     * 

The  attempt  to  evade  the  organic  law  by  making  the  coming  into 
this  state  (after  committing  an  offense  in  another)  a  crime  is  too  pal- 
pable, in  view  of  the  admitted  fact  that  the  Constitution  of  the  United 
States  gives  to  citizens  of  all  the  states  the  immunities  and  privileges 
of  its  own  citizens,  and  of  their  guaranteed  right,  under  the  interstate 
commerce  clause,  to  pass  through  another  state  without  arrest  and  in- 
quiry into  their  accountability  for  offenses  against  their  own  sovereign- 
ty, but  especially  because  the  trial  for  the  new  felony  involves  an  in- 
vestigation of  the  original  bigamy  by  a  jury  not  of  the  vicinage  and 
remote  from  the  witnesses.     *     *     * 

Our  statute  applies  by  its  terms  as  well  to  a  citizen  of  another  state. 
who  in  transitu  affords  to  our  local  authorities  the  opportunity  to  ap- 
prehend him,  as  to  those  who  become  domiciled  within  our  borders. 
Ordronaux,  Const.  Leg.  pp.  339-343.  As  a  citizen  of  another  state, 
he  has  the  privilege  of  demanding  a  trial  in  a  particular  locality,  and 
by  a  jury  of  the  vicinage ;  and  it  would  deprive  him  of  that  right,  guar- 
anteed by  the  federal  Constitution,  to  arrest  him  while  temporarily 
in  this  state,  and,  under  the  pretense  of  punishing  him  for  the  felony 


JURISDICTION  259 

of  coming  into  the  state  after  a  bigamous  marriage,  try  him  remote 
from  tlie  locahty  where  the  marriage  was  celebrated  and  his  witnesses 
reside  for  an  offense  involving  only  the  question  whether  the  second 
marriage  was  in  fact  bigamous.    Ordronaux,  supra,  p.  255. 

Wharton  (2  Crim.  Law,  §  16S5),  after  discussing  the  English  stat- 
ute, says:  "In  some  of  the  United  States  a  similar  statute  has  been 
enacted ;  in  others  a  continuance  in  the  bigamous  state  is  made  indict- 
able, no  matter  where  the  second  marriage  was  solemnized.  But,  when 
the  act  of  bigamous  marriage  is  made  the  subject  of  indictment,  then, 
at  common  law,  the  place  of  such  act  has  exclusive  jurisdiction."  The 
court  of  Alabama  has  expressly  held  in  Eeggs  v.  State,  So  Ala.  108, 
that  where  a  person  is  indicted  for  the  bigamous  act  of  marrying  a 
second  time  in  another  state,  as  distinguished  from  continuing  to  co- 
habit within  the  state  after  such  marriage,  the  indictment  could  not  be 
sustained;  but  the  court  did  not  find  it  necessary  in  that  case  to  dis- 
cuss the  question  of  legislative  power,  as  the  Legislature  had  modified 
the  English  statute  in  the  same  way  that  it  had  been  altered  by  law  in 
Vermont,  Massachusetts,  Tennessee,  Missouri,  and  other  states. 

It  will  not  be  insisted  that  the  courts  of  the  state  of  ]\Iaine  would 
have  power  to  enforce  a  statute  which  provided  for  punishing  with 
death  any  person  who  had  committed  murder  in  another  state,  and  then 
gone  within  its  limits,  by  apprehending  a  Texan,  and  requiring  him  to 
send  to  the  banks  of  the  Rio  Grande  for  testimony  to  meet  and  refute 
that  of  a  malignant  neighbor  who  had  followed  him  almost  across  the 
continent  to  wreak  his  vengeance.  If  a  state  has  the  power  to  punish 
one  caught  within  its  borders  as  a  felon  for  a  bigamous  marriage  com- 
mitted within  another  state,  what  is  to  prevent  the  trial  of  a  citizen 
found  in  a  neighboring  state  for  a  homicide,  if  the  statute  were  broad 
enough  to  include  murder  as  well  as  bigamy?  if  the  statute  made  it  a 
felony  punishable  with  death  to  come  into  the  state  after  committing 
murder  in  another?  The  assertion  of  such  authority  would  jeopardize 
the  security  of  every  American  citizen  who  ventured  beyond  the  con- 
fines of  the  state  in  which  he  resided.  The  express  provision  for  the 
extradition  of  criminals  excludes  the  idea  of  trvins:  them  outside  of 
the  limits  of  the  state  where  the  offense  is  committed,  even  if  there 
were  no  direct  guaranty  that  they  should  not  be  subject  to  arrest  and 
trial  for  offenses  against  their  own  sovereign,  when  beyond  her  limits. 

The  additional  counts  in  which  it  is  charged  that  the  defendant, 
after  the  bigamous  marriage  in  South  Carolina,  came  into  Xorth  Caro- 
lina, and  cohabited  with  the  person  to  whom  he  was  married,  cannot 
be  sustained,  because  that  offense  is  not  covered  by  our  statute.  The 
North  Carolina  statute  would,  if  enforced,  subject  him  to  indictment 
if  he  should  come  across  the  border  and  leave  the  woman  behind. 

While  we  do  not  recognize  the  validity  of  marriages  of  parties  when 
they  leave  the  state  for  the  purpose  of  evading  a  law  which  makes  a 
marriage  between  them  unlawful,  and  with  the  intent,  after  celebrating 


260  JURISDICTION 

the  rites  in  another  jurisdiction,  to  return  and  live  in  this  state  (State 
V.  Kennedy,  76  N.  C.  251,  22  Am.  Rep.  683),  we  have  no  express  stat- 
ute making-  such  acts  indictable  as  a  felony,  but  only  as  a  misdemeanor, 
where  they  live  in  adultery  here  (State  v.  Cutshall,  109  N.  C.  764,  14 
S.  E.  107,  26  Am.  St.  Rep.  599).  This  fact  is  fatal  to  another  count 
of  the  indictment.  But  we  do  not  wish  to  be  understood  as  question- 
ing the  power  of  the  state  to  punish  one  of  its  citizens  who  goes  out 
of  the  state  with  intent  to  evade  its  laws  by  celebrating  a  bigamous 
marriage  beyond  its  jurisdiction,  and  returning  to  live  within  its  bor- 
ders. 

For  the  reasons  given  we  think  that  there  was  no  error  in  the  judg- 
ment of  the  court  below  quashing  the  indictment;  and  it  is  affirmed. 


SIMPSON  V.  STATE. 

(Supreme  Court  of  Georgia,  1893.    92  Ga.  41,  17  S.  E.  9S4,  22  L.  R.  A.  248, 

44  Am.  St  Rep.  75.) 

Indictment  for  assault  to  murder. 

Lumpkin,  J,2  *  *  *  Under  the  evidence  Introduced  in  behalf 
of  the  state,  and  which  the  jury  evidently  believed  to  be  true,  the  ac- 
cused shot  twice  at  the  prosecutor,  intending  the  balls  from  the  pistol 
used  to  take  effect  upon  him.  At  the  time  of  the  firing  the  prosecutor 
was  in  a  boat  upon  the  Savannah  river,  and  within  the  state  of  Georgia, 
and  the  accused  was  standing  upon  the  bank  of  the  river  in  the  state 
of  South  Carolina.  It  was  conceded  that  if  either  or  both  of  the  balls 
had  struck  the  prosecutor  an  offense  of  some  kind,  would  have  been 
committed  in  Georgia,  upon  the  idea  that  the  act  of  the  accused  took 
effect  in  this  state ;  but  it  was  contended  that,  inasmuch  as  the  prose- 
cutor was  not  struck,  no  effect  whatever  was  produced  in  Georgia 
by  the  act  in  question. 

This  contention  is  not  well  founded  in  point  of  fact,  for  the  evidence 
shows  conclusively  that,  although  the  prosecutor  was  not  injured,  the 
balls  did  strike  the  water  of  the  river  in  close  proximity  to  him,  within 
this  state,  and  therefore  it  is  certain  that  they  took  effect  in  Georgia, 
although  not  the  precise  effect  intended,  assuming  that  the  verdict 
correctly  finds  it  was  the  deliberate  purpose  of  the  accused  to  actually 
shoot  at  the  prosecutor.  What  the  accused  did  was  a  criminal  act,  and 
it  did  take  effect  in  this  state.  Mr.  Bishop  says  :  "The  law  deems  that 
a  crime  is  committed  in  the  place  where  the  criminal  act  takes  effect. 
Hence,  in  many  circumstances,  one  becomes  liable  to  punishment  in  a 
particular  jurisdiction  while  his  personal  presence  is  elsewhere.  Even 
in  this  way  he  may  commit  an  offense,  against  a  state  or  county  upon 

2  J^art  of  the  opinion  is  omitted. 


JURISDICTION  261 

whose  soil  he  never  set  his  foot."  1  Bish.  Crim.  Proc.  §  53.  And  see 
Bish.  Crim.  Law,  §  110. 

Of  course,  the  presence  of  the  accused  within  this  state  is  essential 
to  make  his  act  one  which  is  done  in  this  state,  but  the  presence  need 
not  be  actual.  It  may  be  constructive.  The  well-established  theory  of 
the  law  is  that,  where  one  puts  in  force  an  agency  for  the  commis- 
sion of  crime,  he,  in  legal  contemplation,  accompanies  the  same  to  the 
point  where  it  becomes  effectual.  Thus,  a  burglary  may  be  committed 
by  inserting  into  a  building  a  hook  or  other  contrivance  by  means  of 
which  goods  are  withdrawn  therefrom ;  and  there  can  be  no  doubt 
that,  under  these  circumstances,  the  burglar,  in  legal  contemplation, 
enters  the  building.  So,  if  a  man  in  the  state  of  South  Carolina  crim- 
inally fires  a  Ball  into  the  state  of  Georgia,  the  law  regards  him  as  ac- 
companying the  ball,  and  as  being  represented  by  it,  up  to  the  point 
where  it  strikes.  If  an  unlawful  shooting  occurred  while  both  the 
parties  were  in  this  state,  the  mere  fact  of  missing  would  not  render 
the  person  who  shot  any  the  less  guilty.  Consequently,  if  one  shoot- 
ing from  another  state  goes,  in  a  legal  sense,  where  his  bullet  goes, 
the  fact  of  his  missing  the  object  at  which  he  aims  cannot  alter  the 
legal  principle. 

Cases  are  numerous  in  which  it  has  been  held  that  where  a  person 
wounds  another  in  one  state  or  country,  but  the  person  wounded  dies 
elsewhere,  beyond  its  territorial  boundaries,  the  courts  of  the  state 
or  country  in  which  death  occurred  have  jurisdiction  to  try  the  of- 
fense. A  leading  case  on  this  line  is  that  of  Tyler  v.  People,  8  Mich. 
320,  in  which  there  was  a  dissenting  opinion  by  Justice  Campbell. 
The  ruling  of  the  majority  of  the  court,  however,  was  approved  in 
the  case  of  Com.  v.  Macloon,  101  Mass.  1,  100  Am.  Dec.  89.  Justice 
Gray,  who  delivered  the  opinion  in  the  latter  case,  says,  on  page  7, 
that  if  one's  "unlawful  act  is  the  efficient  cause  of  the  mortal  injury, 
his  personal  presence  at  the  time  of  its  beginning,  its  continuance,  or 
its  result,  is  not  essential.  He  may  be  held  guilty  of  homicide  by 
shooting,  even  if  he  stands  afar  off,  out  of  sight,  or  in  another  juris- 
diction" ;  and  the  words  quoted  are  followed  by  apt  illustrations.  On 
page  17  of  the  same  report  Justice  Gray  disapproves  the  dissenting 
opinion  of  Justice  Campbell  above  mentioned. 

There  is,  however,  a  clear  distinction  between  cases  like  the  one 
just  cited,  where  a  wound  is  inflicted  in  one  jurisdiction  and  death  en- 
sues in  another,  and  cases  like  the  present,  where  the  accused  in  one 
state  puts  in  operation  a  force  which  takes  effect  in  another.  On  page 
343  of  8  Mich.,  supra,  this  distinction  is  clearly  stated  by  Justice  Camp- 
bell. He  says  the  doctrine  of  constructive  presence  is  not  applicable 
to  a  case  like  that  with  which  he  was  then  dealing,  and  then  uses  the 
following  language  which  sustains  our  ruling  in  the  case  at  bar. 
Speaking  of  constructive  presence,  he  says :  "All  that  it  amounts  tc  ii 


262  JURISDICTION 

that  the  crime  shall  be  regarded  as  committed  where  the  injurious  act 
is  done.  A  wounding  must,  of  course,  be  done  where  there  is  a  per- 
son wounded,  and  the  criminal  act  is  the  force  against  his  person. 
That  is  the  immediate  act  of  the  assailant,  whether  he  strikes  with  a 
sword  or  shoots  a  gun;  and  he  may  very  reasonably  be  held  present 
where  his  forcible  act  becomes  directly  operative."  This  doctrine  is 
supported  by  Rorer  on  Interstate  Law,  241,  243,  244,  citing  Johns  v. 
State,  19  Ind.  421,  423,  81  Am.  Dec.  408.  And  see  Whart.  Confl. 
Laws,  §  825,  and  notes  on  pages  717,  718;  Whart.  Crim.  Law,  §§  27&- 
280. 

In  Adams  v.  People,  1  N.  Y.  173,  it  appeared  that  the  accused 
forged  a  paper  in  Ohio,  upon  which  he  procured  money  in  New  York, 
through  an  innocent  agent,  without  going  into  the  latter  state.  He 
afterwards  voluntarily  went  into  that  state,  and  was  indicted  and  tried 
for  the  crime.  It  was  conceded  by  both  court  and  counsel  that  he 
was  guilty  of  committing  the  crime  in  the  state  of  New  York,  and  the 
question  upon  which  the  case  turned  was  simply  whether  or  not,  in- 
asmuch as  he  owed  no  allegiance  to  that  state,  he  could  be  tried  and 
punished  therein.  In  U.  S.  v.  Davis,  2  Sumn.  482,  Fed.  Cas.  No. 
14,932,  it  appeared  that  a  gun  was  fired  from  an  American  ship  lying 
in  the  harbor  of  Raiatea,  one  of  the  Society  Isles,  by  which  a  person 
on  a  schooner  belonging  to  the  natives,  and  lying  in  the  same  harbor, 
was  Rilled;  and  it  was  held  that  the  act,  in  contemplation  of  law, 
was  done  on  board  the  foreign  schooner,  where  the  shot  took  effect, 
and  that  jurisdiction  of  the  crime  belonged  to  the  foreign  government, 
and  not  to  the  courts  of  the  United  States. 

In  Hawes  on  Jurisdiction  (section  110)  it  is  laid  down  that  "a  crime 
may  be  committed  within  the  jurisdiction  of  a  state,  although  the  per- 
son committing  it  never  was  within  its  borders,  if  the  act  takes  effect 
there."  An  interesting  discussion  pertinent  to  the  question  involved 
may  be  found  in  6  Crim.  Law  Mag.,  beginning  on  page  155,  in  an  ar- 
ticle entitled  "Dynamiting  and  Extraterritorial  Crime."  "A  party 
who,  in  one  jurisdiction,  or  in  one  county,  may  put  in  operation  a 
force  that  does  harm  in  another,  may  be  liable  in  either  for  the  of- 
fense." Brown,  Jur.  §  92.  This  section  also  contains  numerous  il- 
lustrations which  are  apt  and  pertinent.  See,  also,  Reg.  v.  Rogers, 
14  Cox,  Cr.  Cas.  22. 

The  above  authorities  demonstrate  beyond  question  that  a  criminal 
act  begun  in  one  state  and  completed  in  another  renders  the  person 
who  does  the  act  liable  to  indictment  in  the  latter.  In  view  of  these 
authorities,  there  cannot  in  the  present  case  be  any  doubt  whatever 
that  Simpson  would  have  been  indictable  in  Georgia  if  a  ball  from  his 
pistol  had  actually  wounded  Sadler.  That  this  would  be  true  is  too 
well  established  for  serious  controversy.  The  able  and  zealous  coun- 
sel for  the  plaintiff  in  error  candidly  conceded  that  such  would  be  the 


JURISDICTION  263 

law,  but  contended  that,  as  the  balls  "took  no  effect  in  Georgia,"  the 
entire  act  of  the  accused  was  committed  in  South  Carolina,  and  that 
he  really  did  nothing  in  this  state. 

We  have  endeavored  to  show  that  this  contention  is  not  sound.  As 
we  have  already  stated,  the  act  of  the  accused  did  take  eft'ect  in  this 
state.  He  started  across  the  river  with  his  leaden  messenger,  and  was 
operating  it  up  to  the  moment  when  it  ceased  to  move,  and  was,  there- 
fore, in  a  legal  sense,  after  the  ball  crossed  the  state  line,  up  to  the 
moment  that  it  stopped,  in  Georgia.  It  is  entirely  immaterial  that  the 
object  for  which  he  crossed  the  line  failed  of  accomplishment.  It  hav- 
ing been  established  by  abundant  authority  and  precedent  that  in  crime 
there  may  be  a  constructive  as  well  as  an  actual  presence,  there  can 
be,  in  a  case  of  this  kind,  in  which  the  act  of  the  accused,  when 
analyzed,  is  simply  an  attempt  to  unlawfully  wound  another  by  shoot- 
ing, no  rational  distinction  in  principle,  as  to  the  question  of  jurisdic- 
tion, whether  the  attempt  is  successful  or  not.  The  criminality  was 
complete,  and  the  offense  was  perpetrated  in  Georgia,  irrespective  of 
results.     *     *     * 

Judgment  affirmed. 


2G4  FOKMEE  JEOPAKDY 


FORMER  JEOPARDY 


STATE  V.  SOMMERS. 

(Supreme  Court  of  Minnesota,  1S05.    60  Minn.  00,  61  N.  W.  907.) 

Mitchell,  J.^  To  an  indictment  for  grand 'larceny,  the  defendant 
pleaded  in  bar  former  jeopardy  of  punishment  for  the  same  offense. 
In  brief,  his  plea  was  that  at  a  former  term  of  court  he  had  been 
placed  on  trial  on  the  same  indictment,  and  that  after  the  case  had 
been  submitted  to  the  jury  the  court,  without  his  consent,  and  in  his 
absence, — he  being  at  the  time  confined  in  prison, — discharged  the 
jury  without  a  verdict,  on  the  alleged  ground  of  their  inability  to 
agree.  The  court  sustained  a  demurrer  to  this  plea,  and  the  correct- 
ness of  this  ruling  is  the  only  question  presented  by  this  appeal. 

The  provision  of  the  constitution,  which  is  but  declaratory  of  the 
common  law,  is  that  "no  person  for  the  same  offense  shall  be  put 
twice  in  jeopardy  of  punishment."  What  constituted  "jeopardy  of 
punishment,"  in  the  legal  or  constitutional  sense,  and  when  it  attaches, 
'are  questions  upon  which  there  is  not  entire  harmony  among  the  au- 
thorities. But,  notwithstanding  some  dissenting  views  on  the  sub- 
ject, we  think  it  may  be  considered  as  settled  by  the  great  weight  of 
authority,  and  in  accordance  with  sound  principle,  that  a  person  is 
put  in  jeopardy  of  punishment,  in  the  legal  sense,  when  a  trial  jury 
is  impaneled  and  sworn  to  try  his  case,  upon  a  valid  indictment,  or, 
as  it  was  expressed  at  common  law,  "when  the  jury  is  charged  with 
the  defendant."  After  a  jury  is  thus  charged  with  a  prisoner,  he  is 
entitled  to  have  the  trial  proceed  to  a  finish  by  verdict,  unless  an  in- 
tervening necessity  prevents.  It  is  a  principle  of  the  common  law, 
as  well  as  of  common  sense,  that  what  becomes  necessary  in  the 
course  of  legal  proceedings  must  be  done.  "All  general  rules  touch- 
ing the  administration  of  justice  must  be  so  understood  as  to  be  made 
consistent  with  the  fundamental  principles  of  justice,  and  consequently 
all  cases  where  a  strict  adherence  to  the  rule  would  clash  with  those 
fundamental  principles  are  to  be  considered  as  so  many  exceptions 
to  it."    Kinloch's  Case,  Foster,  Crown  Law,  16. 

In  accordance  with  this  principle,  it  is  now  well  settled  that,  where 
there  is  a  manifest  necessity  for  so  doing,  the  court  may,  even  with- 
out the  consent  of  the  defendant,  discharge  a  jury  without  a  verdict, 
and  that  this  will  be  no  bar  to  trying  the  defendant  again  for  the 

1  The  concurring  opinion  of  Canty,  J.,  is  omitted. 


FORMER   JEOPARDT  265 

same  offense.  As  to  what  facts  and  circumstances  would  create  a 
legal  necessity  for  a  discharge  of  the  jury  without  a  verdict,  it  is 
not  now  necessary  to  consider,  further  than  to  say  that  it  is  settled 
that  the  inability  of  the  jury  to  agree  constitutes  a  moral  necessity 
for  their  discharge  from  giving  a  verdict,  which  will  prevent  it  being 
a  bar  to  another  trial.  But  in  this  connection  there  comes  in  another 
familiar  principle  in  the  administration  of  justice,  viz.  that  in  a  prose- 
cution for  felony  the  accused  must  be,  and  has  a  right  to  be,  present 
at  every  stage  of  the  trial ;  at  least,  unless  he  has  waived  that  right. 
He  has  the  same  right  to  be  present  at  the  discharge  of  the  jury 
without  a  verdict  as  at  any  other  step  in  the  trial,  for  he  may  be 
able  to  show  good  reasons  why  they  ought  not  to  be  discharged. 

In  this  case,  the  defendant  having  been  once  "put  in  jeopardy  of 
punishment,"  and  the  jury  having  been  discharged  without  his  con- 
sent, and  during  his  enforced  absence, — he  not  having  waived  his 
right  to  be  present, — it  seems  to  us  that  it  necessarily  follows  that 
he  cannot  be  put  again  in  jeopardy  of  punishment  for  the  same  of- 
fense. 1  Bish.  Cr.  Proc,  par.  272;  State  v.  Wilson,  50  Ind.  4S7, 
19  Am.  Rep.  719;  Rudder  v.  State,  29  Tex.  App.  262,  15  S.  W 
717.  It  is  true  that,  notwithstanding  some  difference  of  opinion  as 
to  the  reason  for  the  rule,  it  is  now  universally  held  that  if,  upon 
a  review  of  the  case  either  in  the  same  or  another  court,  a  verdict 
of  guilty  is,  upon  the  motion  of  defendant,  set  aside,  he  may  be 
tried  again  for  the  same  offense.  But  that  is  not  at  all  analogous  to 
the  present  case.  The  defendant  has  no  right,  under  the  constitutional 
provision  now  under  consideration,  to  a  review  of  his  case  after  con- 
viction, no  matter  how  many  errors  may  have  been  committed  on  the 
trial.  To  this  right  of  review  there  may  be  attached  such  conditions 
as  may  be  deemed  proper;  and,  in  availing  himself  of  this  right  by 
asking  relief  from  a  conviction,  the  defendant  must  accept  it  subject 
to  the  condition  imposed,  which  is  that,  if  the  verdict  is  set  aside  for 
error,  he  may  be  tried  again.  But  in  the  present  case  the  defendant 
is  not' asking  for  any  such  relief,  but  is  merely  standing  upon  the 
facts  and  record  as  they  are,  and  asserting  his  constitutional  immunity 
from  being  again  put  in  jeopardy  of  punishment  for  the  same  offense. 
The  demurrer  to  the  plea  ought  to  have  been  overruled. 

Order  reversed. 

Canty,  J.,  concurred. 


266  FORMER   JEOPARDY 

ROBERTS  V.  STATE. 

(Supreme  Court  of  Georgia,  1853.    14  Ga.  8,  58  Am.  Dec.  528.) 

The  defendants,  with  others,  were  indicted  for  a  robbery  committed 
upon  John  Jackson,  of  said  county.  At  March  term,  1853,  they  filed  a 
plea  setting  forth  the  record  of  a  former  indictment  against  them  for 
burglary,  upon  which  they  had  been  tried  and  convicted,  and  which 
they  averred  to  be  the  same  felony,  and  none  other,  for  which  they 
were  now  indicted.  To  this  plea,  the  Solicitor  General  in  writing  de- 
murred, denying  its  sufficiency  in  law  to  operate  the  acquittal  of  the 
defendants.  Upon  consideration  of  such  demurrer,  the  plea  was  over- 
ruled by  the  court,  and  the  defendants  required  to  answer  over, 
*    *    * 

Starne;s,  J.,^  delivered  the  opinion.     *     *     * 

The  main  fact  stated,  and  on  which  the  plea  rested,  was  that  the 
defendants  had  been  previously  convicted  on  the  charge  of  burglary, 
that  judgment  had  been  rendered  on  said  conviction,  and  that  the  fel- 
ony of  which  they  had  been  so  convicted  was  one  and  the  same  with 
the  felony  of  which  they  then  stood  accused.  Of  course,  the  Solicitor, 
by  so  demurring,  and  admitting  that  this  charge  of  robbery  was  the 
same  felony  as  that  of  which  the  defendants  had  been  convicted,  in- 
'  tended  only  to  admit  that  the  two  indictments  related  to  the  same  trans- 
action, and  did  not  mean  to  admit  that  the  charge  was  the  same  in  each 
case.  Taking  this,  then,  as  true,  it  becomes  our  duty  to  make  the  fol- 
lowing inquiry :  When  a  prisoner  has  been  indicted  for  having  burgla- 
riously broken  and  entered  the  dwelling  of  another  with  intent  to  steal 
the  goods  and  chattels  of  the  owner,  and,  in  order  to  manifest  such 
intent  on  the  trial,  proof  be  adduced  that  the  prisoner  did  violently,  or 
by  intimidation  from  the  person  of  the  owner,  steal  such  goods  and 
chattels,  and  he  be  convicted,  and  afterwards  an  indictment  for  the 
robbery  committed  at  the  time  be  found  against  him,  can  he  then  be 
tried,  if  he  plead  autrefois  convict,  for  such  robbery  as  a  separate  of- 
fense? 

The  case  made  by  this  record  invokes  an  answer  from  us  to  this 
question.  The  record,  it  is  true,  does  not  show  that,  upon  the  trial 
of  these  defendants  for  the  burglary,  that  part  of  the  evidence  which 
was  relied  upon  to  show  the  felonious  intent  was  the  same  with  that 
which  was  offered  upon  the  trial  for  robbery ;  but  this  is  in  effect  ad- 
mitted by  the  demurrer  to  the  plea,  as  we  have  shown,  and  thus  the 
question  presented  arises. 

Of  the  sufficiency  of  the  plea  of  former  acquittal  or  conviction,  the 
following  is  said  to  be  a  true  test,  viz. :  Whenever  the  prisoner  might 
have  been  convicted  on  the  first  indictment,  by  the  evidence  necessary 

2  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


FORMER  JEOPARDY  207 

to  support  the  second ;  or,  in  other  words,  where  the  evidence  neces- 
sary to  support  the  second  indictment  would  have  sustained  the  first. 
Arch.  C.  P.  106 ;  Rex  v.  Clark,  1  B.  &  B.  473 ;  People  v.  Barrett,  1 
Johns.  (N.  Y.)  66;  Com.  v.  Cunninc,diam,  13  Mass.  245;  Hite  v.  State, 
9  Yerg.  (Tenn.)  Zh7 ;  People  v.  AlcGowan,  17  Wend.  (N.  Y.)  386; 
State  V.  Risher,  1  Rich.  (S.  C.)  222;  Durham  v.  People,  4  Scam.  (111.) 
172,  39  Am.  Dec.  407;  Com.  v.  Wade,  17  Pick.  (Mass.)  400;  2 
Hawks,  98. 

This'  may  be  said  to  be  the  case  in  all  compound  felonies.  1  Ross  on 
C.  89,  note. 

There  seems  to  be  some  difficulty  in  applying  this  rule  (as  above  ex- 
pressed) in  all  cases.  It  may  be  said  that  the  prisoner  could  not  have 
been  convicted  on  the  indictment  for  burglary,  by  the  proof  necessary 
to  convict  on  the  indictment  for  robbery ;  and  the  evidence  necessary 
to  support  the  indictment  for  robbery  would  not  have  insured  a  con- 
viction on  the  prosecution  for  burglary.  If  the  indictment  for  robbery, 
however,  had  been  first  tried,  then,  upon  the  trial  of  the  burglary,  the 
proof  necessary  to  support  that  last  trial  would  have  been  such  as 
would  have  been  sufficient  to  sustain  the  first  prosecution,  because, 
after  proof  of  the  breaking  and  entering  by  the  prisoner,  the  state 
would  have  proceeded  to  prove  the  violent  stealing  from  the  prose- 
cutor, in  order  to  show  the  breaking,  etc.,  with  felonious  intent;  and 
this  would  have  been  proof  of  the  robbery. 

To  avoid  any  confusion  on  this  subject,  we  adopt  the  rule  as  it  is 
otherwise  more  generally,  and  perhaps  more  accurately,  expressed,  viz., 
that  the  plea  of  autrefois  acquit  or  convict  is  sufficient,  whenever  the 
proof  shows  the  second  case  to  be  the  same  transaction  with  the  first. 
Fiddler  v.  State,  7  Humph.  (Tenn.)  508;  Thach.  206,  207.  That  rule 
is  decisive  of  this  case.     *     *     * 

The  rule  above  stated  by  me  is  that  which  is  prescribed  for  this  case, 
and  it  must  be  the  law  for  these  defendants. 

This  record  shows  that  the  transaction  referred  to  in  the  indictment 
for  burglary  is  the  same  with  that  in  the  prosecution  for  robbery,  in- 
asmuch as  the  pleader,  in  order  to  show  the  felonious  intent,  has  made 
it  necessary  in  the  former  to  prove  the  circumstances  of  the  stealing, 
and  thus  to  involve  the  same  transaction  (the  robbery)  in  both  cases. 
If  the  pleader  had  alleged  the  breaking  with  felonious  intent  (which 
constitutes  burglary),  and  had  been  able  to  prove,  otherwise  than  by 
proof  of  the  robbery,  that  the  felonious  intent  was  manifested,  then 
the  two  might  not  have  constituted  the  same  transaction.  But  this  was 
settled  by  the  demurrer;  and  the  state's  counsel,  having  elected  to 
make  his  proof  of  felonious  intent  in  this  way,  has  put  his  case  within 
the  application  of  the  rule. 

In  passing  sentence  upon  these  defendants,  after  the  conviction  in 
the  case  of  burglary,  the  court  no  doubt  graduated  the  penalty  accord- 


^2Q8  FORMER  JEOPARDY 

ing  to  the  circumstances  of  the  transaction,  thus  taking  into  considera- 
tion the  proof  of  the  robbery ;  for  it  is  to  be  presumed  that  a  break- 
ing and  entering  of  a  dvvelHng  house,  accompanied  by  an  actual  rob- 
bery, would  have  been  more  severely  punished  than  a  breaking  and 
entering  with  an  intent  to  rob  which  was  not  consummated.  If  this 
be  so,  and  the  defendants  have  been  held  to  some  degree  of  punish- 
ment in  consideration  of  the  robbery,  to  try  them  again  for  it  would 
be,  as  it  were,  to  place  them  in  jeopardy  a  second  time  on  account  of 
the  same  offense,  thus  in  some  sort  violating  the  fundamental  prin- 
ciple on  which  the  plea  of  autrefois  acquit  and  convict  rests.  Hence, 
again,  the  propriety  of  the  rule  which  we  recognize  and  apply. 
On  this  ground,  we  reverse  the  judgment  of  the  court.     *     *     * 


WIST  PUBLISHING  CO.,  PRINTERS,  8T.  PADX,  MENU. 


,,ii[;  SOUTHERN  REGlOrjAI  I IBRARY 


FACILITY 


AA    000  682  600 


